HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sherri Stillo
Applicant
-and-
Toronto Transit Commission and Christine Jefferies
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Stillo v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Sherri Stillo, Applicant
Self-represented
Toronto Transit Commission and Christine Jeffries, Respondents
Marni Tolensky, Counsel
1This is an Application filed on August 2, 2016 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment because of disability. The applicant states that the respondents refuse to allow her to return to work following knee replacement surgery and to accommodate other disabilities that affect her ability to work certain shifts.
2On October 7, 2016, the respondents filed Requests for Order During Proceedings (“Requests”). The respondents request that the Tribunal grant an order: 1) authorizing the respondents to access, use and/or disclose the applicant’s personal health information, from 2007 to the present, contained in her TTC Occupational Health and Claims Management file (“the OHCM File”) as maintained by the respondent employer, to the extent that this information relates to or is an issue in this Application, in order to respond to and defend the Application; 2) permitting the respondents to review and/or disclose the relevant documents in the OHCM File with individuals who are expected to testify regarding documents in the OHCM File and/or will provide instruction for purposes of responding to the Application; and 3) granting an extension of the deadline of 35 days from the date the Tribunal issues its order with respect to these Requests, to address whether the matter should be deferred.
3The respondents submitted that the applicant’s allegations relate to her medical condition, restrictions and the respondents’ accommodation of her medical restrictions. The respondents submitted that, as a result, the applicant has placed these matters in issue before the Tribunal. The respondents submitted that the majority of the documents regarding these issue are contained in the OHCM File and that these documents are relevant to the respondents’ defense of the applicant’s allegations against it. The respondents submitted that it requires access to these documents in order to make full answer and defense to the Application.
4The respondents submitted that Tribunal authorization is necessary because there may be a conflict with respect to privacy standards required by applicable legislation. The respondents indicate that the expectations and protections under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. The respondents submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.
5The applicant filed a response to the respondents’ request, but did not address the respondents’ request for early disclosure of her OHCM file.
Analysis and Decision
6Before ordering production of documents, the Tribunal must be satisfied that the documents in question are “arguably relevant”, and that they are not privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. A finding that a document is arguably relevant does not necessarily mean that the document will actually be found to be relevant or admissible at a hearing. The respondents are correct in noting that the Tribunal has granted similar requests. See, for example, Johnston v. Toronto Transit Commission, 2011 HRTO 923, Power v. Toronto Transit Commission, 2011 HRTO 1462, 2011 HRTO 1462 and O’Brien v. Toronto Transit Commission, 2012 HRTO 170.
7I am satisfied that the documents contained in the OHCM File are arguably relevant and that the respondents require access to them in order to meaningfully respond to the Application. However, the Application describes her medical history as it relates to her employment dating from December 2014, when she began a medical leave following knee replacement surgery. Consequently, there does not appear to be any basis for the respondents’ request for access to the applicant’s medical information before December 2014, i.e., from 2007 onwards, and in my view this request is too broad.
Order
8The Tribunal orders as follows:
a. The respondents are granted disclosure and access to the applicant’s OHCM File from December 2014 to the present regarding the medical conditions identified in the Application in order to defend and respond to this Application;
b. The respondents’ advisors, instructors and potential witnesses (in relation to information contained in the applicant’s OHCM File) are the only individuals permitted to access and use the applicant’s health files as identified in (a), above; and,
c. The respondents’ request for an extension of time is granted. The respondents are required to file submissions regarding whether the Application should be deferred within 35 days of the date of this Interim Decision.
9I am not seized of this matter.
Dated at Toronto, this 26th day of October, 2016.
“Signed By”
Douglas Sanderson
Vice-chair