Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge, 2016 HRTO 371

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andy Bouchard

Applicant

-and-

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 22, 2016

Citation: 2016 HRTO 371

Indexed as: Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge

WRITTEN SUBMISSIONS

Andy Bouchard, Applicant

Rhonda Howells, Representative

1894773 Ontario Inc. o/a Andy Meyers Lodge, Respondent

Nicole Smith, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability. This matter is scheduled for hearing on April 4 and 5, 2016 in Thunder Bay, Ontario.

2This Interim Decision addresses a Request for an Order During Proceedings requesting production of documents, filed by the respondent on March 14, 2016. The applicant filed a Response to a Request for Order on March 21, 2016 opposing the request. On March 22, 2016, the respondent purported to file submissions in reply to the applicant’s response. The Tribunal’s Rules of Procedure (the “Rules”) do not provide for reply submissions regarding interlocutory requests. Consequently, I have had no regard to these submissions in rendering this Interim Decision.

Production Request

3The respondents requested that the Tribunal order the applicant to produce a copy of the medical file for the applicant held by his physician, Dr. Gagnon. The respondent submitted that an issue in this proceeding is whether the applicant has a disability and Dr. Gagnon’s medical file is relevant to this issue. The respondent further submitted that Dr. Gagnon is expected to testify at the hearing and the respondent requires these documents to prepare for the hearing. The applicant opposes the request for several reasons. First, the applicant submitted that the request is too late, as the deadlines for disclosure of arguably relevant documents and documents to be relied upon are well past and the hearing dates are fast approaching. Second, the applicant submitted that the documents in question are not in the applicant’s possession. Third, the applicant submitted that the respondent’s request for the applicant’s entire medical file is too broad. The applicant submitted that the applicant has been Dr. Gagnon’s patient for 15 years and the medical issues in question in this proceeding arose in August 2014. The applicant submitted that this broad request for disclosure amounts to a fishing expedition. The applicant submitted that the request is prejudicial because the hearing is scheduled to commence shortly and the applicant wishes to avoid any delay. The applicant also submitted that disclosure of his medical information to other individuals living and working in a small community, within a small industry, would breach his privacy.

Analysis and Decision

4At 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. In cases where applicants have placed their medical condition at issue before the Tribunal, the Tribunal has required applicants to obtain and produce arguably relevant medical documents from their physicians and other medical practitioners. See, for example, Bosnitch v. Humber College Institute of Technology and Advanced Learning, 2014 HRTO 1245 and Baldeo v. Securitas Canada Ltd., 2015 HRTO 1395.

5The applicant’s medical condition is in issue in this Application; therefore, medical information related to his condition is arguably relevant and should be disclosed. I agree with the applicant, however, that the request is overly broad. The relevant time period in this Application related to the applicant’s medical condition is from the date of his original injury, September 2012 to the present. While I agree that the respondent’s request comes rather late in the proceeding, it is also the case that the applicant should have already produced all of the medical information and documents created in this period. With respect to the applicant’s concerns regarding privacy, which are valid, I note that Rule 3.3 states as follows:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

Order

6The Tribunal orders as follows:

1. By no later than March 30, 2016, the applicant shall obtain and deliver to the respondent Dr. Gagnon’s medical file for the applicant for the period of September 1, 2012 to March 22, 2016.