Pinchuk v. Toronto Transit Commission, 2016 HRTO 1483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeffrey Pinchuk

Applicant

-and-

Toronto Transit Commission, Shelley Waterman and Christine Jeffries

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: November 21, 2016

Citation: 2016 HRTO 1483

Indexed as: Pinchuk v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Jeffrey Pinchuk, Applicant

Self-represented

Toronto Transit Commission, Shelley Waterman and Christine Jeffries, Respondents

Giuseppe Agostino, Counsel

Introduction

1This is an Application filed on September 6, 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 accommodate him and allow his to return to work.

2On October 21, 2016, the respondents filed a Request for an Order During Proceedings (“RFOP”) requesting that the Tribunal make an order authorizing the respondents to:

a. access, use and/or disclose the applicant’s personal health information contained in his 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;

b. to review and or disclose relevant documents in the OHCM file (containing personal health information) to individuals who are expected to be witnesses in respect of specific documents in the OHCM file as well as individuals whose employment duties include providing instructions and/or responding to the Application;

c. an extension to file their Response 35 days from the date of the Tribunal’s Order or from the date the applicant’s OHCM file is disclosed, whichever is later.

3The respondents submit the applicant’s allegations relate to his personal health information, including his restrictions and accommodation, all of which are in issue before the Tribunal. The respondents submit they must have access to the documents in the OHCM file in order to be able to make full answer and defense to the Application.

4The respondents submit a Tribunal order is required because there may be a conflict with privacy standards required by the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A, even though the individual respondents may be “health information custodians” or “agents of a health custodian” or “recipients of health information” and express consent may not be necessary. The respondents submit access to some health records may not be permissible without the applicant’s consent or a Tribunal order.

5The respondents submit the Tribunal has made similar orders for disclosure in cases including Coutts v. Toronto Transit Commission, 2016 HRTO 7; Andreoff v. Toronto Transit Commission, 2014 HRTO 1235; Feres v. Toronto Transit Commission, 2014 HRTO 980; Johnston v. Toronto Transit Commission, 2011 HRTO 923; Power v. Toronto Transit Commission, 2011 HRTO 1462; O’Brien v. Toronto Transit Commission, 2012 HRTO 170; and Kungl v. Toronto Transit Commission, 2014 HRTO 335.

6The applicant responded to the RFOP by e-mail, dated November 10, 2016, in which he advised he does not oppose the respondents’ request.

Analysis and Decision

7Before 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 documents 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 as set out in paragraph 5 above, as well as in, for example, Stillo v. Toronto Transit Commission, 2016 HRTO 1389.

8I am satisfied in this case that the documents contained in the OHCM file are arguably relevant, that the respondents require access to them in order to meaningfully respond to the Application, and that the applicant does not oppose the respondents’ request.

Order

9The Tribunal orders as follows:

a. The respondents are granted disclosure and access to the applicant’s OHCM File 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 their Response within 35 days of the date of this Interim Decision or the date upon which they receive disclosure of the applicant’s OHCM file, whichever is later.

10I am not seized of this matter.