Tito D’Aurizio v. Toronto Transit Commission, 2016 HRTO 1071

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tito D’Aurizio Applicant

-and-

Toronto Transit Commission Respondent

-and-

Amalgamated Transit Union, Local 113 Affected Party

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: August 11, 2016

Citation: 2016 HRTO 1071

Indexed as: D’Aurizio v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Tito D’Aurizio, Applicant No one appearing

Toronto Transit Commission, Respondent Lucy Siraco, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On July 12, 2016, the respondent filed a Request for Order During Proceedings (“Request”). The respondent requests that the Tribunal grant an order:

1. authorizing the respondent, for the purposes of responding to the Application, use and/or referral to the applicant’s personal health information contained in his TTC Occupational Health and Claims Management file (“the OHCM File”), including his Sick Benefit Association claims, from at least March 2015 to the extent that this information relates to an issue in the Application;

2. permitting the respondent to review and/or disclose the relevant documents in the OHCM File, on an “as needed” basis, with individuals who are expected to testify regarding these documents and/or with those who will provide instruction for purposes of responding to the Application; and

3. granting an extension of the deadline to file its Response of at least 35 days from the date the Tribunal issues its order with respect to this Request or 35 days from the date the respondent receives these documents.

3The respondent submitted that, as a result of the issues raised in the Application, these documents in the OHCM file are relevant to the respondent’s defense of the applicant’s allegations against it. The respondent submitted that it requires access to these documents in order to make full answer and defense to the Application.

4The respondent submitted that a Tribunal Order allowing it access to these documents is necessary because there may be a conflict between the provisions of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”), which allows access to health information for the purpose of preparing to be a witness for a proceeding or in the course of employment duties, and the potentially different duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose such as Coutts v. Toronto Transit Commission, 2016 HRTO 7, and Feres v. Toronto Transit Commission, 2014 HRTO 980.

5The applicant did not file a response to the Request and the time for doing so has passed.

Analysis and Decision

6As the Tribunal has previously determined, there are specific exemptions to the general protections of personal health information when the parties are involved in legal proceedings. Dewdney v. Toronto Transit Commission, 2012 HRTO 2212 (“Dewdney”) addressed Request that was very similar to the one made be the respondent. In the Dewdney decision, the Tribunal considered the provisions of the PHIPA and OHSA with respect to access and disclosure of medical information in an application before the Tribunal. The decision held, at paras 43-46:

While I appreciate the applicant’s concerns regarding her privacy, in light of the nature and scope of the allegations made in the Application and what is permissible use and disclosure prescribed by the PHIPA and the OHSA, I agree with the respondents that they should be allowed to disclose the content of the applicant’s OHCM files with their potential witnesses, including OHCM employees, Sun Life employees, medical personnel and experts, to facilitate their ability to fully respond to and defend against the Application and/or because those individuals may be called to give evidence at the hearing in relation to the documentation.

The applicant’s concerns may, to some extent, be alleviated by the respondents’ assurance to handle the health information “on a need to know basis”. The respondents are cautioned to ensure that their use and disclosure of the information is no more than is reasonably necessary to facilitate preparation of the Response and defend against the Application.

In addition, the Tribunal directs counsel for the respondents to state and confirm with the potential witnesses with whom the health information is canvassed that they are to strictly maintain the confidentiality of the information. All parties are reminded of Rule 3.3 of the Tribunal’s Rules of Practice, which states:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

In summary, pursuant to section 63(2) of OHSA and section 49(1) of PHIPA which permit disclosure when complying with a legal order and when participating in a proceeding as a witness, and in accordance with the Tribunal’s Rules of Procedure, I permit the respondents to use the applicant’s health information and allow disclosure with potential witnesses in relation to that information, specifically OHCM employees, Sun Life employees, medical personnel and experts, for the purposes of participating in this proceeding.

7I find that the Tribunal’s reasoning in Dewdney should be applied in this Request. The OHCM file, including Sick Benefit Association claims, is arguably relevant to the issues raised in the Application. It is clear that the respondent requires access to them in order to meaningfully respond to the Application.

8The directions given to the respondent at paras. 50-55 in Dewdney should also be followed in this Application. I therefore direct that a copy of the relevant documents that are disclosed to the respondent from the OHCM, subject to privilege, should also be provided to the applicant. If the respondent will be relying on these documents in preparing its Response, the applicant must also have access to them in order to provide a meaningful Reply.

ORDER

9The Tribunal makes the following Orders:

a. The respondent may access and use and/or refer to the applicant’s personal health information contained in her TTC Occupational Health and Claims Management file (“the OHCM File”) including his Sick Benefit Association claims from March 2015 to the extent that this information is relevant to an issue in the Application;

b. The respondent to may review and/or disclose the relevant documents in the OHCM File on an “as needed” basis with individuals who are expected to testify regarding these documents and/or those will those who are required to provide instruction for purposes of responding to the Application;

c. A copy of the relevant documents that are disclosed to the respondent from the OHCM, subject to privilege, should also be provided to the applicant; and

d. The respondent shall serve and file its Response within 35 days of the date of it receives the relevant documents from the applicant’s OHCM file.

10I am not seized.