Belanger v. Residence Inn by Marriott, 2016 HRTO 1436

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Belanger Applicant

-and-

Residence Inn by Marriott Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: November 4, 2016 Citation: 2016 HRTO 1436 Indexed as: Belanger v. Residence Inn by Marriott

WRITTEN SUBMISSIONS

Sandra Belanger, Applicant Michael Klug, Counsel

Residence Inn by Marriott, Respondent Mark Gernon, Representative

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”).

2The hearing in this case is scheduled to resume December 13, 14 and 15, 2016. The respondent has filed a Request for Order During Proceeding (“Request”) seeking production of materials from the applicant. The applicant filed a Response to the Request on August 3, 2016.

3In the Request, filed on July 22, 2016, the respondent sought the following documents:

a. A list of names and addresses of all medical practitioners the Applicant consulted from July 2008 to October 2012;

b. A list of all health care provider names (e.g. rehabilitation, nutritionist) and addresses the applicant consulted from July 8, 2008 to October, 2012;

c. All medical and treatment records from those listed in a. and b. above;

d. Copies of the applicant’s tax filings for the 2008 – 2014 tax years, inclusive;

e. Copies of all T-4s and all income receipts for the 2008 – 2014 tax years inclusive;

f. Copies of any CRA income forms with respect to any income replacement, such as Employment Insurance, Canada Pension Plan for the 2008 – 2014 tax years;

g. Any other income information, such as other disability insurance payments for 2008 – 2014 inclusive,

h. A list and/or copies of all applications or resume submissions made by the applicant seeking alternate employment with any prospective employer in 2010- 2013 inclusive.

4The starting point in assessing a Request such as this are the issues raised in the Application.

5The following is a summary of the allegations made in the Application:

• In August, 2008, the applicant went off work for a neck injury. She began to receive long term disability (LTD) benefits in December, 2008. She returned to work part-time on February 2, 2009, but went back off work for approximately a week in about April, 2009. She returned to work in May 2009, and went off work again in June, 2009 to do work hardening.

• In July and august, 2009, the LTD provider assessed the applicant and reported her restrictions to the respondent. The applicant alleges from that point on, the respondent did not contact the applicant about a return to work and alleges the LTD provider told her the respondent would not take her back.

• In October, 2009 the insurer concluded that he applicant could work as a retail, cleaning or service supervisor.

• On November 5, 2010 the LTD provider terminated the applicant’s benefits because she was not disabled from performing any occupation.

• In August, 2011 the applicant’s lawyer wrote to the respondent and asked if the applicant was still an employee and if the respondent intended to offer her any employment. The respondent advised him the applicant’s former job was no longer available but there was an alternate job available to her, although she opined the applicant’s restrictions meant the applicant could not do the new job. The applicant stated it would terminate the applicant’s employment as of September 30, 2011 if she did not return to active employment. The LTD provider wrote to the applicant on September 23, 2011 and stated the applicant’s employment was terminated effective September 23, 2011 because the applicant was not able to perform the duties of her normal job into the future and there was no position that could accommodate her limitations.

• The applicant filed her Application on September 27, 2012 seeking among other things, lost wages and general damages.

6The documents described in paragraphs 3 a. to c. are clearly relevant to the extent they address the health issues that are germane to the Application and should be produced unless they have been produced already. Documents that speak to other health issues including dental care are not relevant and need not be produced. It would appear that the applicant has produced the names and professional addresses of the applicant’s relevant health care providers.

7The documents described in 3 d. to e. have been produced in part. Nevertheless, as the application has been bifurcated, their disclosure is not requisite at this time. The respondent may renew the request to produce these documents if and when the Application is upheld on the merits.

8The Tribunal makes the following order and direction:

a. The applicant, using her best efforts, will produce to the respondent the documents identified in paragraph 6 above within 21 days of this order.

b. The respondent may renew the request to produce the documents identified in paragraph 7 above if and when the Application is upheld on its merits.