McDonald v. CAA South Central Ontario, 2016 HRTO 393

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shala McDonald Applicant

-and-

CAA South Central Ontario Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: March 29, 2016 Citation: 2016 HRTO 393 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

Great-West Life, Affected Party Vicky Ramsay, Counsel

Introduction

1This Interim Decision addresses the applicant’s request for the production of certain unredacted e-mails exchanged between the respondent and Great-West Life (“GWL”).

applicant’s Production Request

2The applicant unsuccessfully applied for short term disability (“STD”) benefits through GWL which adjudicates STD claims for the respondent. Following the denial, the applicant requested a copy of her claim file from GWL. GWL produced copies of file documentation to the applicant. However, GWL redacted certain information from three e-mails disclosed to the applicant. It took the position that the redacted information was confidential commercial information regarding the claims adjudication process that was not specific to the applicant. The applicant then made a complaint to the Office of the Privacy Commissioner of Canada which she ultimately withdrew.

3The applicant filed a Request for Order During Proceedings (“RFOP”) in which she requested production of the following:

a. an unredacted version of an e-mail sent by a representative of GWL to representatives of the respondent on September 24, 2013 at 8:38 AM and

b. an unredacted version of an email sent by Mary Duncan to three GWL representatives on the same date at 9:26 AM.

4The applicant submitted that the unredacted versions of the e-mails are arguably relevant to her claim that the respondent discriminated against her because of disability. The respondent opposed the applicant’s request on the basis that the information that was redacted related to business issues between it and GWL and are not relevant to this proceeding. However, both parties agreed to a process in which the respondent would produce the unredacted e-mails to me for review and I would make a determination regarding their arguable relevance.

5By Case Assessment Direction, I found that it was appropriate for GWL to have notice of the applicant’s production request and to be provided with the opportunity to make submissions as an affected party. In Response to the applicant’s RFOP, GWL maintained its position that the redactions were appropriate for the reasons contained in the response it made to the applicant’s complaint to the Privacy Commissioner. In that response, GWL took the position that the redactions were permitted under s. 9(3) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”). That section states that an organization is not required to give access to personal information if to do so would reveal confidential commercial information. GWL took the position that the redacted information is confidential commercial information because it is limited to an exchange of information relating to the process of adjudicating claims.

Analysis and findings

6It is well established that the test for production of documents is arguable relevance to an issue in dispute in the case. As noted in a previous Interim Decision and confirmed with the parties at the hearing, the following are the allegations raised in the applicant’s Application:

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.

7In my view, the unredacted e-mails are arguably relevant and must be produced. I note that the relevance of the e-mails may be somewhat limited in the sense that this Application does not deal with whether GWL and/or the respondent improperly denied the applicant STD benefits. Having said this, the redacted portions do have arguable relevance to the issues raised by the applicant in particular, the reprisal issue and potentially the failure to accommodate issue.

8I do not agree with GWL that the redacted information is confidential commercial information regarding the claims adjudication process that was not specific to the applicant. Of the four redacted sections, at least two refer specifically to the circumstances surrounding the applicant’s claim and the discussion in all redacted portions relates to the applicant’s claim, even if it also relates to the more general process for the adjudication of claims. I do accept that the redacted portions of the e-mails may raise privacy concerns. However, as with the medical information I ordered the applicant to produce earlier in this proceeding, I find that these privacy interests are outweighed by the potential probative value of the information.

order

9The respondent must produce to the applicant unredacted versions of the emails listed in para. 3 no later than April 1, 2016.

10The parties are reminded of Rule 3.3. of the Tribunal’s Rules of Procedure which states:

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