McDonald v. CAA South Central Ontario, 2016 HRTO 186

Human Rights Tribunal of Ontario

Between:

Shala McDonald Applicant

-and-

CAA South Central Ontario Respondent

Interim Decision

Adjudicator: Jo-Anne Pickel Date: February 9, 2016 Citation: 2016 HRTO 186 Indexed as: McDonald v. CAA South Central Ontario

Written Submissions

Shala McDonald, Applicant Jamillah Mensah, Representative

CAA South Central Ontario, Respondent Julie O’Donnell and Brandin O’Connor, Counsel

Introduction

1This Interim Decision addresses the production request made by the respondent after the last hearing day in this case. It also provides directions to ensure that the hearing proceeds in a just, fair and expeditious manner over the next two hearing days.

Respondent’s Production Request

2The respondent requested the following production orders:

1. that the applicant produce to the Tribunal the medical notes and records of each of Dr. Ilka Wright and Veronica Taylor including all clinical notes that refer to the applicant’s conflicts with previous employers as discussed in the applicant’s testimony on the last hearing day. The respondent specifically requested any documents relating to the applicant’s discussion with these practitioners of her complaints against (i) a federally-regulated employer regarding her pregnancy in 2006 and (ii) the employer form which she resigned in 2008 after allegedly making a complaint about workplace bullying and reprisals. The respondent requests that the applicant provide the files from Dr. Wright and Ms. Taylor to me directly to review so that any relevant documents may be produced.

2. that the applicant produce to the Tribunal any and all documents binding the applicant to confidentiality in regards to complaints against the employers referred to in the subparagraph 1.

3. that the applicant produce to the Tribunal any notes or records of Ms. Taylor, including all clinical notes, for the period from February 25, 2011 to February 25, 2013 for review. The respondent requests that Ms. Taylor’s entire file be produced to me to review so that any arguably relevant documents may be produced.

4. that the applicant produce to the Tribunal all medical notes and records of Dr. Wright or notes and records of Ms. Taylor regarding the January 13, 2011-April 25, 2011 period of disability disclosed by documents produced on one of the last hearing days.

5. that the applicant produce Ms. Taylor’s CV to the respondent.

Legal principles relating to production requests

3It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

4In paragraphs 12 and 13 of McKay v. Toronto Police Services Board, 2009 HRTO 1220, the Tribunal set out the appropriate analysis as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLII 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: […]. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

5The arguable relevance threshold is a relatively low threshold for the requesting party to meet. However, as the Tribunal stated in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 10 (“Lampi”):

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

6The Tribunal in Lampi also went on to point out that:

The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.

Analysis and findings

7Since the test for production of documents is arguable relevance to an issue in dispute in the case, I consider it important to set out my understanding of the issues in dispute in this case.

8It is my understanding that the applicant’s allegations may be divided into four categories as follows:

a. That the applicant was subject to a poisoned work environment due, in particular, to certain racially-related comments made in the workplace and the respondent’s response to them.

b. That the respondent discriminated against the applicant by conducting an inadequate investigation of her complaint regarding the above comments.

c. That the respondent discriminated against the applicant because of race and/or reprised against her by denying her the transfer she requested.

d. That the respondent discriminated against the applicant because of disability by failing to accommodate her alleged disabilities by providing her with the transfer she requested.

9It is against the backdrop of these issues that I must determine the respondent’s production request.

10I note that an additional contextual factor that I consider relevant is the fact that I have already ordered the applicant to produce medical records for a significant period of time prior to the start of her employment with the respondent. As discussed below, I consider that this production order more than adequately covers all documents with any arguable relevance to the issues I have to decide in this case. Any documents that predate this period are so remote in time as to lack any probative value to the issues I must decide in this case. In the alternative, any probative value these documents may have is outweighed by the significant incursion to the applicant’s privacy interests that would arise from their production, even to the Tribunal for review.

Medical documents re. conflicts with previous employers

11I deny this request on the basis that these documents are not arguably relevant to the issues in dispute in this proceeding.

12The applicant provided testimony in cross examination regarding complaints she filed against previous employers. The respondent has had the opportunity to cross-examine the applicant on with regard to these complaints. I am not persuaded that any medical documents regarding any discussion the applicant may have had with her treating health care professionals regarding such complaints are arguably relevant to the issues I have to decide in this case.

13The issues I have to decide in this case are focussed specifically on whether the respondent’s alleged actions or inactions in this matter amount to a violation of the Human Rights Code (“Code”). In my view, any further evidence regarding previous complaints made by the applicant against employers some 8 to 10 years ago would only derail a fair, just and expeditious hearing in this case. Moreover, the probative value of such documents, if they existed, is outweighed by the applicant’s privacy interests in her medical information. As discussed above, the medical records I have already ordered produced in this hearing cover a sufficient period of time to cover any documents that have arguable relevance to the issues in dispute in this case.

14Further, in my view, any evidence regarding previous workplace complaints made by the applicant would only lead me into a situation of having to determine whether there was a reasonable basis for such complaints. That is, the applicant maintains that there was a reasonable basis for the complaints and the respondent claims that the complaints may have stemmed from what they suggest is the applicant’s propensity “to fight against people, systems or things”. Even if the applicant did have such a propensity, which I make no finding on at this point, this does not mean that there was not a legitimate basis for her previous complaints. In my view, any further evidence regarding the complaints filed by the applicant – many years ago – against previous employers would only raise the issue of whether there was a reasonable basis for those complaints. That is an issue that extends far beyond the scope of this application which is focused on whether the applicant has made out her onus of proving the allegations in this Application against the respondent in this case.

15While I allowed the applicant to testify regarding her complaints against previous employers on the last hearing day, having heard this testimony, I am not persuaded that these complaints fall within the category of similar fact evidence. The Tribunal described its approach to similar fact evidence in Sinclair v. London (City), 2008 HRTO 48 (“Sinclair”) at paras. 24-26. Applying the principles set out in Sinclair, I find that the benefits of any further evidence relating to previous complaints in terms of assisting me in determining the issues before me is outweighed by the potential prejudice to the hearing process and the party whose character is placed into question through such evidence. I fail to see how any further evidence relating to complaints the applicant made against previous employers 8-10 years ago will assist me in determining whether the respondent’s breached the Code in this case.

16This is not to say that the respondent may not make submissions in relation to what they allege is a tendency to exaggerate by the applicant. The Tribunal must consider various factors in assessing the credibility and reliability of a witness’ testimony. I do not disagree with anything stated in the excerpt from Gombos v. Goodrich Aerospace Canada Ltd., 2011 HRTO 978 cited by the respondent. However, the passage quoted by the respondent did not relate to a production request, nor to any kind of similar fact evidence. The excerpt relates to the assessment of credibility that is a feature of almost every case before this Tribunal. Therefore, I see nothing in Gombos that supports the respondent’s production request in this case.

Previous settlement documents

17I deny this request on the basis that these documents are not arguably relevant to the issues in dispute in this proceeding.

18Again, it bears repeating that the issues I have to decide in this case are very specific. I do not consider that any document relating to any settlements entered into with previous employers are arguably relevant to the issues I have to decide in this case. For the reasons set out in the previous section, any further evidence regarding the complaints filed by the applicant – many years ago – against previous employers would only raise the issue of whether there was a reasonable basis for those complaints. Any inquiry into this question extends beyond the scope of this proceeding.

Ms. Taylor’s Notes or Records

19I grant the request that the applicant produce any notes or records, including clinical notes, from Ms. Taylor’s files for the period from February 25, 2011 to February 25, 2013 that have not already been produced. Now that I have established a period of time for arguable relevance, I do not consider it necessary, or appropriate, for the applicant to have to produce the file to me for review. She must produce any documents from the relevant time period that have not already been produced to the respondent directly and file a copy to the Tribunal.

Documents re. period of disability in early 2011

20I deny this request on the basis that these documents are not arguably relevant to the issues in dispute in this proceeding.

21I understand that the documents so far produced refer to a possible period of disability prior to period for which documents were produced. However, in my view, any documents relating to an apparent period of disability some two and a half years before the applicant’s commenced employment with the respondent have no arguable relevance to whether the respondent breached the Code in this case, nor to the effects, if any, to any such breach of the Code.

Ms. Taylor’s CV

22I grant the respondent’s request for the production of Ms. Taylor’s curriculum vitae. From Ms. Taylor’s witness statement, it appears that she will be providing opinion evidence regarding the applicant’s health condition during the relevant period of time. In my view, a curriculum vitae for Ms. Taylor must be produced which sets out her qualifications to provide the evidence she is expected to provide.

Directions for Next Two Hearing Days

23In my view, almost one full hearing day was wasted in the last hearing block dealing with production issues that should have been raised prior to the last scheduled continuation dates. I am also concerned about what appears to be a drift toward an expanded focus beyond the actual issues I need to decide in this case. As a result, I will be setting appropriate parameters to ensure that that the remaining hearing days on this file proceed in a just, fair and expeditious resolution of the merits of this Application.

24As a result, I make the following directions in regards to the next two hearing days:

a. The respondent’s must finish their cross-examination of the applicant on the morning of the next hearing day, February 17, 2016. No additional time will be provided to the respondent for its cross-examination beyond the morning of February 17, 2016.

b. The afternoon of the next hearing day will be taken up with the examination-in-chief as well as the cross-examination of the applicant’s family doctor. I will set time limits on both the examination-in-chief and the cross-examination to ensure that hearing time is used effectively and the parties remain focused on evidence that is relevant to the issues I must decide in this case.

c. Any further production requests from the parties must be made in advance of the scheduled hearing day for which the documents sought to be produced may be relevant. I note that the applicant filed a request for the production of documents from the respondent. Under the Tribunal’s Rules of Procedure, the respondent must file their Response no later than 14 days after the request was delivered to it. Upon receiving the respondent’s Response, I will issue a decision in relation to the applicant’s request.

Orders/Directions

25The Tribunal orders the applicant to produce the following to the Tribunal and the respondent no later than February 12, 2016:

a. any notes or records, including clinical notes, from Ms. Taylor’s files for the period from February 25, 2011 to February 25, 2013 that have not already been produced; and

b. a copy of Ms. Taylor’s curriculum vitae.