Gerred v. Toronto Transit Commission, 2016 HRTO 1674

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Gerred

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: December 22, 2016

Citation: 2016 HRTO 1674

Indexed as: Gerred v. Toronto Transit Commission

APPEARANCES

Steven Gerred, Applicant

Self-represented

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

Introduction

1The purpose of this Decision is to decide if the Application should be dismissed as an abuse of process because of the applicant’s refusal to comply with a Tribunal order to produce arguably relevant medical documents.

BACKGROUND

2The respondent operates a public transit system in Toronto. On September 18, 2013, the applicant applied for a Transit Operator position with the respondent, and on September 2, 2014, the respondent interviewed him for the position.

3On December 14, 2014, the respondent provided a Conditional Employment Offer to the applicant subject to the completion of several pre-conditions, one of which was meeting the requirements of a Pre-Placement Medical Assessment (“PPMA”). A Transit Operator must have a CZ class license, which can only be obtained with a medical report certifying to the Ministry of Transportation that the person is medically fit to hold such a license.

4On December 15, 2014, the applicant attended a PPMA at a third party organization, which administers medical testing, and was examined by a physician. The applicant disclosed to the physician that he had diabetes.

5On December 19, 2014, the applicant attended a lab where several tests were conducted to assess his diabetes.

6On February 5 and 10, 2015, the applicant’s family physician sent medical notes and blood work results to the third party organization addressing the applicant’s diabetes.

7On February 11, 2015, the third party organization’s physician informed the applicant that he was required to provide further medical information to show that his diabetes was under control.

8Between February 18 and February 27, 2015, the applicant and the respondent’s Director of Occupational Health and Claims Management had an email exchange in which, among other things, the applicant stated that his diabetes was under control, and alleged that the respondent was discriminating against him because he had diabetes.

9On March 9, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his disability. Specifically, he alleged that the respondent had put its offer of employment to him on hold because of his diabetes.

10On June 8, 2015, the respondent filed a Response, which denied the allegation of discrimination. Specifically, the respondent stated that its offer of employment to the applicant was on hold because he had not provided satisfactory medical information to demonstrate that his diabetes was under control, which was required for him to qualify for a CZ class license to operate a public transit vehicle.

11On February 22, 2016, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was scheduled for June 28, 2016. The Notice also informed them that pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure, they were required to deliver to each other a list and copy of all arguably relevant documents in their possession by no later than March 14, 2016.

12The respondent complied with Rule 16.1, but the applicant did not. On March 27, 2016, he merely sent the respondent two cases, which he was intending to use to support his arguments at the hearing.

13On March 31, 2016, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested, among other things, that the Tribunal order the applicant to produce the clinical notes and records and reports of his family physician from 2014 to January 2016, and the clinical notes and records of the treatment facility attended by him in relation to his diabetes in 2015.

14On April 11, 2016, the applicant filed a Response to the RFOP, which opposed the respondent’s request because the respondent refused to confirm to him that the Conditional Employment Offer was still in effect, and that if he was no longer in the hiring process, there was no reason to produce his healthcare records.

15On April 19, 2016, the Tribunal issued an Interim Decision, 2016 HRTO 508, which found that the above medical documents were arguably relevant because the applicant’s medical condition was at the heart of the dispute in the case, and the resolution of this dispute required an assessment of his condition in order to decide whether or not the respondent had breached its obligations under the Code. Accordingly, the Tribunal granted the respondent’s request, and ordered the applicant to produce the above medical records within 21 days.

16On May 11, 2016, the applicant sent the respondent a letter, which stated that he had requested the medical documents from his family physician on two separate occasions, and there was nothing else that he could do. He also stated that he was not in a position to attend his physician’s office in person. He further stated that he had given his consent for his physician and the treatment facility to disclose the documents to the respondent, and that the respondent should contact them.

17On May 18, 2016, the respondent filed a further RFOP, which requested, among other things, that the Tribunal direct the applicant to comply with its April 19, 2016 order.

18On May 30, 2016, the applicant filed a Response to the RFOP, which opposed the respondent’s request because he was not in a position to pay for obtaining the documents. He stated that he had given consent for his physician and the treatment facility to disclose the documents to the respondent, and the respondent should have to pay for the cost of obtaining them. He also stated that he does not live near his physician’s office, and he did not want to grieve his physician by continually asking him to provide information “at the whim of the TTC.”

19On June 1, 22, and 27, 2016, the respondent filed correspondence and a further RFOP, which requested that the Tribunal dismiss the Application because of the applicant’s failure to comply with its April 19, 2016 order.

20The hearing took place as scheduled on June 28, 2016. At the outset of the hearing, I heard submissions from the parties on whether the Application should be dismissed as an abuse of process because of the applicant’s refusal to comply with the Tribunal’s April 19, 2016 order to produce arguably relevant medical documents. I provided the parties with a copy of Hicks v. Hamilton-Wentworth Catholic District School Board, 2015 HRTO 1285 (“Hicks”), where the Tribunal dismissed the Application as an abuse of process because of the applicant’s refusal to comply with the Tribunal’s order with respect to production of arguably relevant medical documents. I directed the parties to specifically address Hicks in their submissions. After hearing the parties’ submissions, I reserved my decision and adjourned the hearing.

ANALYSIS

21The first issue to consider is whether the applicant has made reasonable efforts to obtain the arguably relevant medical documents held by his healthcare providers. Rule 16.1 of the Tribunal’s Rules requires each party to disclose to the every other party a copy of all arguably relevant documents in its possession no later than 21 days after the Tribunal issues the Notice of Hearing. The Tribunal has held that where there are arguably relevant medical documents, which are not in the possession of an applicant, but are held by his or her healthcare providers, the applicant must make reasonable efforts to obtain such documents, and disclose them to the respondent. See Buttar v. Hamilton Regional Police Service, 2012 HRTO 1750 at paras. 12-13.

22In his submissions, the applicant stated that he has done his best to obtain the medical documents in the possession of his healthcare providers, and there is nothing more than he can do. Specifically, he stated that he cannot afford to pay the fee to obtain the documents because he only works part-time, and he provided his consent for the respondent to obtain the documents from his physician and the treatment facility.

23When asked by the Tribunal what the fee would be to obtain the documents from his physician and the treatment facility, he responded that it would cost approximately $140-150. When asked whether he had requested a waiver of the fee, he responded that he had sent emails and made phone calls to his physician, and had been unable to reach him. When asked again whether he had requested a waiver of the fee, he responded that he had not.

24When asked by the Tribunal why he stated in his May 11, 2016 letter to the respondent that he was not in a position to attend his physician’s office in person, he responded that he lives in Stouffville and his physician’s office is in Orillia. When asked to explain how he is able to attend the hearing of his Application in downtown Toronto, but not able to attend his physician’s office in Orillia, he stated that it costs less money to take public transportation to downtown Toronto than Orillia. When asked whether he attends his physician’s office in person for medical appointments, he responded that he attends every three months, but has not attended over the past four months. When asked how he gets from his home to his physician’s office for appointments, he responded that he gets a friend to drive him there. When asked why a friend could not drive him to his physician’s office to request the documents, he responded that his friends have financial limitations and have to work.

25In my view, the applicant has not made reasonable efforts to obtain the arguably relevant medical documents held by his healthcare providers. I did not find the reasons that he provided for being unable to obtain them to be credible. To start out with, his reasons have shifted as this process has unfolded:

• On April 11, 2016, which was prior to the Tribunal’s April 19, 2016 order to produce the documents, his position was that the respondent refused to confirm to him that the Conditional Employment Offer was still in effect, and that if he was no longer in the hiring process, there was no reason to produce them.

• On May 11, 2016, which was after the Tribunal’s order, he provided a different reason for not producing the documents, namely, that he had requested them from his physician on two separate occasions, and he was not in a position to attend the physician’s office in person.

• On May 30, 2016, he provided yet further different reasons for not producing the documents, namely, that he was not in a position to pay for obtaining them, and he did not want to grieve his physician by continually asking him to provide information “at the whim of the TTC.”

26Furthermore, the applicant’s explanation for not being able to afford the $140-150 fee to obtain the documents from his healthcare providers, namely, that he works part-time, was vague and lacked details, but even if it true, he has not taken any steps to request a waiver of the fee from his healthcare providers. It is obvious from his answers to the Tribunal’s questions that, notwithstanding his alleged financial limitations, he can find a way to transport himself from his home to downtown Toronto for the hearing of his Application, and more significantly, from his home to the offices of his healthcare providers for medical appointments, but he refuses to find a way to transport himself from his home to the offices of his healthcare providers to try to request a waiver of the fee and obtain the documents.

27My overall impression was that the applicant refuses to make reasonable efforts to obtain the arguably relevant medical documents held by his healthcare providers because he holds the opinion that the respondent wants them, and therefore, should be spending the time and resources to obtain them rather than him. My view of this is buttressed by his statement on May 30, 2016 that he did not want to grieve his physician by continually asking him to provide information “at the whim of the TTC.” This statement completely ignores the fact that the Tribunal’s April 19, 2016 Interim Decision found that the documents were arguably relevant, and ordered him to produce them.

28The second issue to consider is whether the Application should be dismissed as an abuse of process because of the applicant’s refusal to comply with the Tribunal’s April 19, 2016 order to produce arguably relevant medical documents.

29Rule A8.1 of the Social Justice Tribunals Ontario Common Rules provides that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. The focus of the doctrine of abuse of process is on the integrity of the administrative justice system. See Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 38.

30The Tribunal has held that the doctrine of abuse of process can apply in a variety of circumstances in which the Tribunal determines that it would be unfair to permit an Application to continue, including the refusal of an applicant to comply with a Tribunal order to produce arguably relevant medical documents. Where an applicant refuses to comply with a Tribunal order to produce such documents, and has articulated no reasonable excuse for his refusal to comply, the only appropriate remedy is to dismiss the Application as an abuse of process. This is for two reasons. First, it is unfair to the other parties and would tend to bring the Tribunal’s process into disrepute to tolerate a party’s complete defiance of a Tribunal order, particularly where the order made is a production order going to the central issue in dispute in the proceeding. Second, where the documents that have been ordered to be produced are central to the issue in the case, the respondent’s ability to defend its position and answer the applicant’s claim is fatally compromised by the applicant’s refusal to comply. See Hicks, above, at paras. 19-20.

31In his submissions, the applicant stated that his Application should not be dismissed because he has done his best to comply with the Tribunal’s April 19, 2016 order, and there is nothing more that he can do. However, as set out above, I disagree. I find that he has not made reasonable efforts to obtain the arguably relevant medical documents held by his healthcare providers.

32In my view, the Application must be dismissed as an abuse of process because of the applicant’s refusal to comply with the Tribunal’s April 19, 2016 order to produce arguably relevant medical documents. The order goes to the central issue in the case, namely, whether the respondent discriminated against the applicant because of his disability by taking the position that his diabetes was not under control, and putting his employment on hold. Moreover, despite the fact that the Tribunal gave the applicant clear notice that his Application was at risk of being dismissed by providing him with the Hicks case discussed above, he maintained an obstinate and uncompromising position that he would not comply with the Tribunal’s order. In the circumstances, the only appropriate remedy is to dismiss the Application as an abuse of process.

ORDER

33The Application is dismissed.