Crawshaw v. Toronto Transit Commission, 2016 HRTO 1632

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Crawshaw

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: December 19, 2016

Citation: 2016 HRTO 1632

Indexed as: Crawshaw v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Toronto Transit Commission, Respondent

Giuseppe Agostino, Counsel

1The applicant filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against him with respect to employment because of disability.

2After the Tribunal served the Application, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested the following:

a. an Order from the Tribunal authorizing the TTC to access, use and/or disclose personal health information from the Applicant’s [Occupational Health and Claims Management] File for the purpose of responding to and defending this Application, to the extent that this information relates to or is an issue in the Application;

b. that the Order from the Tribunal permit the TTC to review and/or disclose the relevant documents in the OHCM file that contain personal health information, for the purpose of this Application, with individuals who are expected to be witnesses in respect of the documents and/or whose employment duties include providing instruction and/or responding to the Application; and

c. an extension for filing the TTC’s Response, to begin 35 days from the date that the Tribunal issues its Order or the date of disclosure of the Applicant’s OHCM File, whichever is later, in response to the TTC’s requests to (a) and (b) above.

3The applicant did not file a Response to the RFOP, and the time for doing so has passed.

4In Robertson-Sim v. Georgian Bay General Hospital, 2013 HRTO 1966, when considering a similar Request, the Tribunal stated the following at paras. 4-5:

Absent 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 in a similar situation 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. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.

The respondent is unable to access medical documents and communications that are in its possession which are arguably relevant to this matter because of privacy legislation. It would be unfair in these circumstances to require the respondent to file a Response without it being able to review all arguably relevant documents. These are exceptional circumstances which justify the production of these documents at this stage.

5I agree with this reasoning, and find that it applies to the case at hand. The respondent’s Request is therefore granted.

6I am not seized of this matter.