Carvalho v. Toronto Transit Commission, 2016 HRTO 395

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danny Carvalho

Applicant

-and-

Toronto Transit Commission

Respondent

-and-

Amalgamated Transit Union, Local 113

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Date: March 30, 2016

Citation: 2016 HRTO 395

Indexed as: Carvalho v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Danny Carvalho, Applicant

Self-represented

Toronto Transit Commission, Respondent

Patricia Matusiak, Counsel

1In this Application, the applicant alleges that a provision in the Collective Agreement with respect to sick leave benefits discriminates against him in employment on the basis of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On February 5, 2016, the respondent filed a Request for an Order During Proceedings (Form 10). In the Form 10, the respondent requests that the Tribunal grant an order authorizing the respondent to access, use and/or disclose the applicant's personal health information contained in his TTC Occupational Health and Claims Management file ("the OHCM File") as maintained by the respondent employer. It did not file a Response, and asks that the Tribunal grant an extension of the deadline to file its Response of at least 35 days from the date the Tribunal addressed the disclosure of the OHCM file.

3Although the applicant consented to the respondent having access to his OHCM file for the period from April 2014 to the present in his Response to a Request for Order (Form 11), the respondent confirmed that it wished to pursue its Request for disclosure as it required the file from January 2013 to the present.

4The applicant's union, the Amalgamated Transit Union, Local 113 (the "union") simultaneously filed a Request for Intervention by Bargaining Agent (Form 28) and a Response to the Request for Order (Form 11) opposing the request for disclosure of the OHCM file on the basis that the respondent had not established that it was arguably relevant. The respondent filed brief written submissions in response to the union's Form 11.

Analysis and Decision

5With respect to the question of arguable relevance, the applicant's allegation is that the impugned provision in the Collective Agreement has an adverse effect on him because his disability causes him to be periodically absent from work. The contents of his OHCM file are arguably relevant because they would potentially reveal whether the applicant has a disability and whether, in fact, it resulted in absences from work. In the absence of a disability that resulted in the applicant needing to take time off, he might not even have standing to challenge this provision. I agree that the respondent requires access to these documents in order to meaningfully respond to the Application.

6However, it is not clear to me why the respondent requires access to documents in the file that pre-date the provision, which the applicant states came into effect April 2014. The respondent does not appear to dispute that date, but says the applicant is seeking a remedy for the years 2013 onwards. There is no explanation for why the applicant chose that timeframe, but until this is explained further, I do not see the relevance of the documents in the OHCM file which pre-date the amendment to the Collective Agreement. In light of the privacy concerns, it is important that any order granting the respondent access to this file is not overly broad.

7The union's alternative position is that if the file is ordered, it should get a copy of it. It is not clear to me why the union requires access to it at this stage. It is not required to file pleadings and will get disclosure of the arguably relevant documents in the event that this matter proceeds to a hearing on the merits.

8The applicant did not request a copy of his OHCM file, but he will be asked to file a Reply after the Response is delivered, and may require a copy of it then.

Order

9The Tribunal orders as follows:

a. The respondent is granted disclosure and access to the applicant's OHCM File from April 2013 onwards, including any medical notes, documents and/or information provided by the applicant and documents and/or information relating to the respondent's efforts to accommodate and/or pay benefits to the applicant;

b. Upon receipt of the documents as identified in (a), the respondent is required to promptly provide the applicant with a copy of the documents along with specifying when a document is redacted due to privilege, identifying the general nature of the document and what category of privilege is being claimed.

c. The respondent's advisors, instructors and potential witnesses (in relation to information contained in the applicant's OHCM File) are the only individuals permitted to access and use the applicant's health files as identified in (a); and

d. The respondent's request for an extension of time is granted. The respondent is required to file its Response within 35 days from the date of this Interim Decision.

10I am not seized of this matter.