Gordon v. Toronto Transit Commission, 2016 HRTO 1599

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Gordon Applicant

-and-

Toronto Transit Commission and Jonathan Tabije Respondents

INTERIM DECISION

Adjudicator: David Muir Date: December 12, 2016 Citation: 2016 HRTO 1599 Indexed as: Gordon v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Peter Gordon, Applicant Krina Mahaisuria, Counsel

Toronto Transit Commission and Jonathan Tabije, Respondents Patricia Matusiak, Counsel

Introduction

1This Application alleges discrimination with respect to employment on the basis of his race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2The Toronto Transit Commission (“TTC”) is the applicant’s employer. The respondent Jonathan Tabije is a supervisor employed by the TTC.

3In this Application the applicant alleges that he was subject to name-calling by the personal respondent which he believes was discriminatory.

4The Application was delivered to the respondents on October 19, 2016.

5Instead of a Response (Form 2), the respondents filed a Request for Order During Proceeding (“Request”) seeking an extraordinary Order requiring the applicant to provide access to extensive medical records from the respondent TTC’s Occupational Health And Claims Management (“OHCM”) file. The full Request is set out below:

a) An Order permitting the respondents access to use and/or disclose personal health information (“PHI”) contained in the OHCM to that the extent that this information relates to or is an issue in the Application for the purposes of preparing its Response to and defending against the Application.

b) An Order authorizing the Respondents to review and/or disclose the relevant documents in the OHCM file that contains PHI for the purposes of the Application with individuals who are expected to be witnesses in respect of the documents and/or whose employment duties include providing instructions and/or responding to the Application.

c) An Order permitting the respondents to file a full Response to the Application within 35 days following the Tribunal’s decision in respect to the Request or the date of disclosure whichever is later.

6Due to administrative error on the respondents’ part, the Request was not delivered to applicant until November 21, 2016.

7The applicant opposes the Request as being overbroad and a fishing expedition.

8The Request is without any merit and is denied.

9Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. However, the Tribunal has also recognized that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, see Bryer v. Toronto (City), 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.

10As is apparent on the face of the Application the applicant’s medical records are almost entirely irrelevant to the primary issues in dispute in this case, related to the alleged discriminatory name-calling by the personal respondent. The applicant does allege that the allegedly discriminatory name-calling had an emotional impact on him and caused him to be off work for a month. It is possible, perhaps likely, that some medical information will become relevant to those issues. However, the fact that this kind of evidence is not available to the respondents at this stage does not in any meaningful way limit the respondents’ ability to respond to the Application. In my view the Request is entirely without merit.

11The processing of this quite simple case has been delayed by the handling of it to date by the respondents, including this meritless Request. Accordingly I direct that the respondents deliver and file their Response (Form 2) within 14 days of the date of this Interim Decision.

12I am not seized of this case.