HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daniel Campbell
Applicant
-and-
The Corporation of the City of Thunder Bay and Manulife Financial
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Campbell v. Thunder Bay (City)
WRITTEN SUBMISSIONS
Daniel Campbell, Applicant
Self-represented
The Corporation of the City of Thunder Bay, Respondent
Andrew Zabrovsky, Counsel
Manulife Financial, Respondent
Sophia Zaidi, Counsel
1This Application, filed on June 6, 2014 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment and goods, services and facilities because of disability and reprisal.
2A merits hearing in this matter had been scheduled for hearing on 23 and 24 February, 2016 in Thunder Bay, Ontario. By Case Assessment Direction the Tribunal cancelled these hearing days and scheduled a summary/preliminary hearing by teleconference on February 23, 2016 to deal with outstanding issues regarding the scope of the Application that the respondents raised in Requests for Orders During Proceedings. These issues included whether the Tribunal should dismiss the Application as against Manulife because the allegations against Manulife have no reasonable prospect of success and whether portions of the Application should be dismissed for delay. The Tribunal also directed that it would deal with the Applicant’s request to amend the Application and the parties’ production requests during the summary/preliminary hearing.
Summary Hearing
Background
3The applicant is a Transit Operator in the respondent Corporation of the City of Thunder Bay’s (the “City”) Transit Department. The applicant’s interactions with the respondent Manulife Financial (“Manulife”) began in March 2012 when he requested and was granted short term disability (“STD”) benefits. Manulife provides adjudication and administrative services to the respondent Corporation of the City of Thunder Bay (the “City”) with respect to its STD and long term disability (“LTD”) benefits programs. Under this arrangement, the City is liable for payment of STD and LTD benefits, not Manulife. Unfortunately, the applicant’s conditioned worsened and he requested additional STD benefits on the basis of his doctor’s diagnosis that the applicant had experienced a toxic reaction to his medication. On April 23, 2012, Manulife informed the applicant that the medical information provided was insufficient to approve additional benefits and asked him for further information. Manulife received a medical report from the applicant’s physician on June 28, 2012. Manulife conducted an internal medical review of the report and concluded that the applicant was entitled to STD benefits only for a two week period related to his original condition. This decision was conveyed to the applicant in a letter dated July 17, 2012. The letter also informed the applicant that he could appeal the decision by providing additional medical information and that the cost of obtaining such medical information was his responsibility. Manulife states that this is its standard procedure.
4The applicant provided further information to Manulife in late November 2012. On the strength of this information, Manulife approved STD benefits for the maximum period and also approved the applicant’s LTD claim. In November 2013, Manulife suspended the applicant’s LTD benefits because it had not received updated medical information. Manulife states that it reinstated the applicant’s benefits after receiving information from the applicant’s doctor and after the applicant indicated that he wanted to gradually return to work. In June 2014, the applicant began the process of returning to work. On May 27, 2014, Manulife sent him a letter indicating that he would not qualify for benefits after July 3, 2014 and set out some positions that it considered him capable of performing if his return to work was unsuccessful.
Submissions
5The applicant stated that the toxic reaction to his medication has left him with mental deficits. Consequently, he submitted that it was unfair for Manulife to place the onus on him to gather the necessary medical information to support his STD claim. In that regard, the applicant submitted that he had enough difficulties managing daily activities without having to deal with Manulife’s requests for information. I asked the applicant if there was any evidence indicating that Manulife treated him differently because of his disability. The applicant submitted that Manulife’s requirement amounted to discrimination under section 11 of the Code because it created an adverse effect barrier for him to receive benefits. He acknowledged that he did not seek accommodation from Manulife, but that Manulife was aware of his medical issues.
6The applicant submitted that Manulife was heavily involved in his return to work in June 2014. The applicant submitted that Manulife drafted the return to work schedule and set a number of responsibilities for the applicant, including not taking vacation during the return to work process. The applicant submitted that he had no input into the return to work plan and there were aspects of the return to work plan with which he did not agree. The applicant stated that he was required to drive under the supervision of another driver for longer than was necessary and wanted to work around his vacation plans. The applicant submitted that Manulife made no provision to protect his dignity.
7Manulife submitted that it treated the applicant fairly and appropriately. Manulife submitted that requiring claimants to pay for the costs of obtaining medical information is its standard practice and that it was not aware that the applicant had any issues with the claims process. Regarding the applicant’s return to work, Manulife submitted that not scheduling vacations during the return to work process is a standard practice. Manulife submitted that it understood that the applicant dealt with the City regarding his vacation and was able to resolve the issue. Manulife submitted that the Tribunal’s case law establishes that to establish discrimination an applicant must have evidence indicating that he or she was treated differently because of a Code ground. Manulife submitted that the applicant pointed to no such evidence. Manulife also submitted that the Tribunal’s case law establishes that the employer, not the insurer, is responsible for accommodating its employees.
Analysis and Decision
8Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
9Section 11 of the Code states as follows:
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
Idem
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
Idem
(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.
No Reasonable Prospect of Success
10In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
11The Tribunal held as follows in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5:
An Application related to a denial of benefits should be dismissed if there is not an allegation of discrimination under the Code. A Code application alleging merely that a decision-maker misapplied the rules of a program or misinterpreted medical documentation cannot be reasonably considered to amount to a Code violation and has no reasonable prospect of success.
12The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were factors in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.
13At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.
14The applicant is clearly displeased with the manner in which Manulife dealt with his claim for STD benefits. It is not uncommon for an insurance carrier to deny benefits and/or seek further information from claimants and such actions are not in themselves discriminatory. To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that the Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396. There does not appear to be any dispute that the applicant is a person with a disability. However, the applicant pointed to no evidence that Manulife treated him differently than any other claimant for STD benefits or that there was any connection to his disability in Manulife’s management of his claim. The applicant submitted that Manulife’s requirement that he obtain medical information was a neutral requirement that had an adverse impact upon him because of his disability. The applicant acknowledged, however, that he never raised his concerns with Manulife or sought accommodation. In these circumstances, I find that the applicant has no reasonable prospect of establishing that Manulife discriminated against him in its management of his STD claim or that Manulife failed to accommodate him in that process.
15The return to work plan for the applicant was a form of accommodation. The duty to accommodate an employee to the point of undue hardship lies with the employer. See Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 and Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352. While an LTD insurer, such as Manulife may make recommendations and provide input, ultimately it is the employer that is responsible for providing reasonable accommodation to the point of undue hardship. Consequently, Manulife was not responsible for the accommodation provided to the applicant. Moreover, the applicant pointed to aspects of the return to work plan that he did not like, but did not point to any evidence that would connect these provisions to his disability. As a result, I find that the applicant’s allegations against Manulife regarding the return to work plan have no reasonable prospect of success. The Application is dismissed as against Manulife.
Delay
16Sections 34(1) and (2) of the Code read as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
17The applicant filed this Application on June 6, 2014. Several of the incidents set out in the Application allegedly occurred more than one year before this date. The City identified these incidents in its written submissions as follows:
Denial of disability benefits on April 10, 2012;
The applicant alleged discrimination and harassment in the provision of disability benefits in a letter of April 30, 2012 and that the City did not respond to it;
The City did not hold a meeting following the suspension of disability benefits, as required by the collective agreement with the applicant’s union;
In July 2012, Manulife advised the applicant he is responsible for the cost of medical reports;
The City did not implement the recommendations of the applicant’s occupational therapist that were presented in a letter dated October 5, 2012; and,
In January 2013, the applicant inquired about a possible return to work.
18The applicant submitted that his toxic reaction to his medication caused a brain injury. The applicant submitted that his brain injury has affected his “executive functions” or higher brain functions. Executive functions include a person’s ability to plan, organize and execute activities; initiate tasks and time management. The applicant submitted that in a letter to Manulife dated June 28, 2012 the applicant’s physician stated that the applicant complained of depression, “muttled” head and sensory deficits and other significant issues. The physician’s opinion was that the applicant was unfit for any form of employment at the time. The applicant cited a research paper regarding brain injuries presented to the British Columbia Probation Officer’s Conference in March 2003. The paper set out a long list of potential consequences of brain injuries, including lack of initiative, indifference, passivity, apathy, inability to make decisions, spatial disorientation and depression. The applicant submitted that he has suffered depression, apathy, spatial orientation, hearing loss and stated that he has had difficulty “putting things together”. The applicant also submitted that he had sustained a serious heart attack in May 2013. The applicant submitted that he believed that he did not have the capacity to file his Application within one year of the incidents occurring before June 6, 2013 and that his medical condition was part of the reason for the delay in filing the Application.
19The City filed detailed submissions regarding delay in its Request for an Order During Proceeding, filed on May 28, 2015 and also in submissions filed in advance of the hearing on February 16, 2016. The City submitted that they relied on these submissions, which, in summary describe incidents alleged to have occurred more than one year before the Application was filed that are discrete and are not related to each other or to any timely allegation. The City focussed its oral submissions on the applicant’s position that his medical condition prevented him from filing the Application in a timely manner. The City submitted that the applicant provided no evidence supporting his assertion that he was incapable of filing the Application within the limitation period or that he lacked capacity to do so. The City submitted that the applicant cited scholarly articles describing the potential effects of acquired brain injuries, but did not provide any medical documentation showing that he in fact suffered from deficits that prevented him from filing the Application in a timely manner. The City submitted that the applicant had been an active advocate for himself, noting that he engaged in the process to obtain STD benefits, allegedly wrote a letter objecting to the denial of benefits in April 2012 and alleging the denial amounted to discrimination, brought his therapist’s recommendations to the City and discussed the prospect of returning to work in late 2012 and early 2013. The City submitted that the applicant was aware of his rights, but did not file an Application until June 2014.
20In brief reply submissions, the applicant submitted that accommodation is a consistent theme throughout his Application. The applicant submitted that the recommendation from his occupational therapist to expedite his neuropsychological assessment was a request for accommodation.
Analysis and Decision
21The Tribunal’s approach to delay is set out in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 at paragraphs 24 and 25:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances, often related to the human rights claim itself, that justifies exercising the discretion under section 34(2). For example, in Klein v. Toronto Zionist Council, 2009 HRTO 241, the Tribunal held that an applicant cannot justify a delay on the basis that they only later discovered evidence which would assist in proving their claim. In Lutz v. Toronto (City), 2009 HRTO 1137, the Tribunal held, referring to a number of Court decisions, that a delay may be found not to have been incurred in good faith where a party says simply that they were not aware of their rights, and made no inquires about options for pursuing the alleged wrong.
22The Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See, Baisa v. Skills for Change, 2010 HRTO 1621. Similarly, incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See, Polihronakos v. Mississauga (City), 2010 HRTO 1433. The Tribunal has also held that incidents separated by a gap in time by a year or more will generally not be considered a series. See, Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Savage v. Toronto Transit Commission, 2010 HRTO 1360. In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a Panel of the Tribunal reviewed the Tribunal’s case law concerning the meaning of “series of events” in section 34 and concluded:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
23The first incident of discrimination set out in the Application that is alleged to have occurred within one year of June 6, 2014 is the applicant’s attempt to return to work in September 2013, which he says the City thwarted. As is described below, the City has also consented to the applicant’s request to amend the Application to add allegations regarding his gradual return to work that started in June 2014. In my view most of the incidents alleged to have occurred beyond the limitation period have no connection to the applicant’s timely allegations. The denial of STD benefits, the applicant’s complaint about this denial, the City’s alleged failure to address this complaint, the failure to hold a meeting following the suspension of disability benefits and Manulife’s advice about the cost of medical information are all allegations related to the applicant’s STD claim, not his return to work, and in my view have no connection to the issue of whether the City met its duty to accommodate the applicant to the point of undue hardship. All of these incidents also allegedly occurred more than one year prior to the first timely incident, i.e., in September 2013. In my view, these allegations do no form a series of incidents with the timely allegations in the Application.
24The request in October 2012 to expedite the applicant’s neuropsychological assessment and the applicant’s inquiries about returning to work in January 2013 are, in my view, about accommodating the applicant’s disability-related needs with a view to returning him to work. The materials before the Tribunal at this point indicate that the same City personnel were involved in these incidents as were the incidents falling within the one year time limit. These incidents also allegedly occurred within one year of the applicant’s return to work in September 2013. In these circumstances, I find the allegations regarding the request to expedite the applicant’s neuropsychological assessment and the applicant’s inquiries about returning to work in January 2013 appear to form a series of incidents for the purposes of section 34(1)(b) and the Tribunal shall continue to deal with them. This finding does not imply that these allegations are meritorious and I appreciate that the respondent disputes that these incidents amount to violations of the Code.
25With respect to the incidents that I have found do not form a series, the applicant bears the onus of proving that the delay was incurred in good faith and must provide a reasonable explanation as to why he did file an Application a timely manner.
26The explanation provided by the applicant was that his medical condition prevented him from filing the Application within the limitation period. In considering medical reasons for a delay in filing an Application, the Tribunal has required evidence which establishes that the medical reasons prevented the applicant from filing an Application in a timely fashion. In Todd v. Rouge Valley Health System 2012 HRTO 2173, for example, the Tribunal stated, at paragraphs 12-13:
In order to demonstrate good faith an applicant must show something more than simply an absence of bad faith: see Reid v. March of Dimes, 2009 HRTO 2207... In determining whether an applicant’s mental health concerns give rise to good faith, the Tribunal has held that a disability must directly impede the applicant’s ability to file an application.
The applicant did not provide medical evidence to establish that the delay in pursuing his human rights was connected to or caused by his mental health. As stated in the Tribunal’s decision in Dionne v. Toronto(City), 2011 HRTO 317…, while the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her legal rights under the Code. See also for example Reid v. Ontario March of Dimes; Downer v. Little & Jarrett, 2010 HRTO 992…and Savage v. Toronto Transit Commission…
27While the applicant provided information about the potential effects of brain injuries, such as the one he suffered, he provided no medical information to support his assertion that he was unable to file his Application in a timely manner. The applicant suffered a heart attack in May 2013 (more than one year after some of his allegations) and he may well have been incapacitated for a period after the attack. Nonetheless, the applicant did not explain why he did not file an application in the months previous to the heart attack. Consequently, I find that the applicant has not provided a good faith explanation for his delay in filing this Application with respect to the incidents I have found not to form a series of incidents.
Requests to Amend and for Production of Documents
The Applicant’s Request to Amend
28On August 13, 2015, the applicant filed a request to amend the Application by adding seven paragraphs setting out allegations regarding his return to work in June 2014. The City submitted that the first paragraph should not be added because it does not actually set out any factual allegations. The City submitted that it consented to the addition of the other six paragraphs, subject to it being permitted to file an Amended Response to the new allegations. The City noted, however, that the seventh paragraph does not appear to be complete and submitted that the applicant should be directed to clarify paragraph seven of the proposed amendment. I agree that the first paragraph of the proposed amendment does not set out any factual allegations and should not be added to the Application. In light of the City’s consent, the applicant’s request to add the other six paragraphs of the proposed amendment is granted. In my view, it is appropriate to direct the applicant to file an Amended Application containing only the allegations against the City that are timely. The applicant shall also clarify the allegation in the seventh paragraph of the requested amendment. The City shall file an Amended Response after receiving the Amended Application.
The City’s Request for Production
29In a Request for an Order During Proceedings filed on December 18, 2015, the City requested production of several documents, as follows:
Documents the City requested from the applicant in letters dated September 14 and December 2, 2015; and,
All arguably relevant documents held by Manulife.
The City also requested an order permitting Tammy Soldera, the City’s Employee Health & Disability Nurse, to speak openly with the City’s representatives and legal counsel regarding all issues material to these proceedings. The City submitted that privacy legislation prevents Ms. Soldera from doing so without either the applicant’s consent or an order of the Tribunal. The applicant’s position was that a previous Interim Decision in this matter, 2014 HRTO 1759, dated December 5, 2014, permits Ms. Soldera to speak with the City about this Application. In the alternative, the applicant submitted that Ms. Soldera should be permitted to speak to the City and its representatives about the Application subject to the conditions set out in the previous Interim Decision. The applicant submitted that Manulife should produce the arguably relevant documents in its possession to both the respondent and him. The applicant submitted that he has disclosed all the documents in his possession that were requested in the City’s letters to him of September 14 and December 2, 2015. The applicant stated that he believed that most of these documents would be included in Manulife’s file.
30There is no dispute that Ms. Soldera must be permitted to speak with the City’s representatives and counsel to allow the City to properly respond to the allegations against it. In my view, an order is the most efficient means to accomplish this. The other documents the City requested do appear arguably relevant and in any event there is no dispute that they should be disclosed.
The Applicant’s Production Request
31In his request filed on August 13, 2015, the applicant also requested production of documents. From Manulife, the applicant requested disclosure of any letters denying benefits to his co-workers in which they were advised that they were responsible for obtaining medical information and for the cost of doing so. During the summary hearing, the applicant stated that he accepted Manulife’s explanation that this is a standard requirement for all employees applying for benefits. In any event, as I have dismissed the Application as against Manulife, there is no basis for granting this order.
32In the Application, the applicant states that in October 2013 the City required him to execute a form entitled “AUTHORIZATION AND CONSENT TO COLLECT/USE/RELEASE OF MEDICAL INFORMATION (General)” (the “Consent”) in order to evaluate whether the applicant could be returned to work. The applicant alleges that this consent allowed the City to discuss and disseminate his medical information far too broadly. The applicant submitted that he is the only employee required to sign such a release, which he considers discriminatory. The applicant requested that if the City has used the same form with other employees then it should produce a copy of the document for each time it did so. The City submitted that it is appropriate for an employer to get an employee’s permission to review and discuss his or her medical information, as it did in this case. The City submitted that the applicant’s request is speculative – a fishing expedition – because he assumes he is the only employee the City asked to execute the consent in question, but provided no basis for this assumption. The City submitted that the Consents signed by other employees are confidential documents and even if medical information was redacted the identity of other employees who sought accommodation would be revealed. The respondent stated that it has provided other employees with the Consent it presented to the applicant. The respondent also submitted that accommodation is an individualized process and therefore the Consents are sometimes modified to reflect employees’ particular situations.
Analysis and Decision
33At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are 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 document(s) in question may prove or disprove a fact in issue in the dispute.
34As the respondent noted, the applicant’s request is speculative. He provided no basis for his belief that other employees have not been required to execute the same Consent that the City presented to him. The City has also stated that it has and does use the Consent form with other employees, but also that the Consent forms are sometimes customized to fit the particular circumstances of each situation. Consequently, the fact that the Consent form the City employs may not be exactly the same in all case does not seem particularly significant from an evidentiary perspective. At the same time, production of the Consents signed by other employees would result in the disclosure of a significant amount of confidential information. In these circumstances, I am not prepared to grant the applicant’s production request.
Order
35The Tribunal orders as follows:
The Application as against Manulife is dismissed;
The allegations regarding the request to expedite the applicant’s neuropsychological assessment in October 2012 and the applicant’s inquiries about returning to work in January 2013 shall continue;
The other allegations of incidents of discrimination occurring prior to June 6, 2013 are dismissed for delay:
The applicant’s request to amend the Application is granted. Within 21 days of the date of this Interim Decision, the Applicant shall file with the Tribunal and deliver to the City an Amended Application, including paragraphs two to seven set out in the applicant’s request to amend. The applicant shall clarify the allegations set out in paragraph seven of the request to amend. The Amended Application shall contain only statements of fact, without legal argument;
With 21 days of the date of receiving the Amended Application, the City shall file with the Tribunal and deliver to the applicant an Amended Response;
Within 21 days of the date of this Interim Decision, Manulife shall deliver a copy of its files regarding the applicant’s claim for STD and LTD benefits to the applicant and to the City;
Ms. Soldera may speak openly with the City’s representatives and legal counsel regarding all issues material to these proceeding for the purpose of assisting the City in responding to this Application and may testify at the hearing of this Application regarding her knowledge of matters relevant to these proceedings;
Within 21 days of the date of this Interim Decision, the applicant shall deliver to the City all arguably relevant documents in his possession, including any document identified in the City’s letters to him, dated September 14 and December 5, 2015, that he has not already produced, if any; and,
The applicant’s production request is denied.
Dated at Toronto, this 4th day of March, 2016.
“Signed by”
Douglas Sanderson
Vice-chair