Thao v. St. Michael’s Hospital, 2016 HRTO 474

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mallory Thao Applicant

-and-

St. Michael’s Hospital and Suzette Perera Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: April 14, 2016 Citation: 2016 HRTO 474 Indexed as: Thao v. St. Michael’s Hospital

WRITTEN SUBMISSIONS

Mallory Thao, Applicant Self-represented

St. Michael’s Hospital and Suzette Perera, Respondents Katherine Ford, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code R.S.O. 1990, c. H.19 as amended (the “Code”).

2This Interim Decision deals with the respondents’ request that they be permitted access to the applicant’s medical records (the “medical records”) held by the organizational respondent’s Corporate Health and Safety Services Department (the “CHSS”) and that they be granted an extension of time to file their Response.

3The medical records include medical documentation from the applicant’s physician, notes of discussions between medical staff and other medical information pertaining to the applicant’s alleged disability.

4It would appear that the applicant will not consent to the use and disclosure of the medical records unless the material is sent to her to review with the right to redact sensitive information not relevant to this case. The applicant indicates that she does not know the exact content of the medical records and would like to review it before it is disclosed to the respondents and redact sensitive information not relevant to this case.

5The issues in this Application concern the applicant’s disability and her allegations that she was not appropriately accommodated. The medical records in issue held by CHSS appear to be relevant to these issues. In her Application the applicant acknowledges that the medical records are is important to her Application.

6The respondents indicate that the medical records are kept confidential by the CHSS pursuant to the Personal Health Information Protection Act, 2004 S.O. 2004 c.3, Sched. A (PHIPA).

7In Dewdney v. Toronto Transit Commission, 2012 HRTO 2212, the Tribunal considered the operation of PHIPA and concluded that if the health records are arguably relevant to the issues before the Tribunal and if the respondent is the applicant’s employer, access to the health records can be granted on the consent of the applicant or by order of the Tribunal. In making such an order, the Tribunal can impose conditions to help protect the confidentiality of the records. In addition, Rule 3.3 of the Tribunal’s Rules of Procedure states:

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

8The applicant has indicated that she would like to have the ability to redact the medical records of non-relevant information before they are handed over to the respondents. This is entirely understandable. However, the applicant has commenced a legal action against the respondents which puts the nature and extent of her disability in issue and also puts in issue the measures taken by the respondents to accommodate her disability. Medical records held by the organizational respondent’s CHSS department are important documents relating to the issues that the applicant has put into issue in the Application. It would not be appropriate to allow the applicant to redact portions of the medical records as she determines appropriate at this point.

9In the absence of the medical records, the Tribunal may not be able to fairly adjudicate the Application, and the respondents’ ability to respond to the allegations may be unfairly hampered.

10Under the circumstances I do not find it unreasonable to grant the respondents’ request of a three week extension of the deadline for the filing of the Response.

orders

1. The respondents are granted access to the applicant’s medical records as contained in the organizational respondent’s CHSS files from November 1, 2014 and onwards only in respect of the facts and allegations raised in this Application and for the purpose of responding to the Application;

2. Upon receipt of the documents as identified in (1), the respondents are required to promptly provide the applicant with a copy of the documents.

3. Respondents’ counsel may review the documents identified in (1) with the personal respondent and other individuals to the extent necessary to respond to the facts and allegations raised in this Application. Counsel shall ensure that copies of the documents are not retained by anyone consulted.

4. The respondents’ request for an extension of time to file a Response is granted. The respondents are required to file a Response within 21 days from the date of this Interim Decision.

5. The applicant may file a Reply with the Tribunal, copied to the respondents, within 21 days of receipt of the Response.

6. The parties are reminded of their obligations under Rule 3.3.

11I am not seized of this matter.