Gerred v. Toronto Transit Commission, 2016 HRTO 508

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Gerred

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: April 19, 2016

Citation: 2016 HRTO 508

Indexed As: Gerred v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Steven Gerred, Applicant

Self-represented

Toronto Transit Commission, Respondent

Patricia Matuziak, 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”). In particular, the applicant alleges that his application to be a transit operator was put on hold because of concerns about his Type 2 Diabetes condition. The applicant indicates that this condition was under control and should not have been a concern and suggests that the respondent’s decision to put the application on hold was discriminatory.

2The hearing of this case is scheduled to take place on June 28, 2016.

3On March 31, 2016, the respondent filed a Request for Order During Proceeding (“Request”) seeking the production of documents from the applicant. The applicant opposed the Request.

4The Request is granted.

5As the parties were advised in the Notice of Hearing, the Tribunal’s Rules of Procedure require that the parties deliver to each other all arguably relevant documents in their possession. This includes documents that the party intends to rely on as well as documents that may not be relied upon but appear to be arguably relevant. This does not mean that all of the documents will be relied upon or admitted at the hearing but the essence of the Rule’s requirement is that the parties produce to each other everything that might be considered to be relevant. It is essential to the Tribunal’s process that this happen prior to the hearing.

6It appears that the applicant has produced nothing to the respondent. The applicant has taken the position from the outset that his medical condition is not relevant to this case. As was pointed out in the Case Assessment Direction issued on May 7, 2015, this is not the case.

7I would also observe that in addition to the documents being sought by the respondent in its Request, it seems likely that there are other documents that are arguably relevant to other issues in the case such as, for example, documents related to the applicant’s claim for damages.

8Turning to the specifics of the Request, the respondent seeks the following:

a. The clinical notes and records and reports of Dr. Pitcher (2014 to January 2016).

b. The clinical notes and records of the treatment facility attended by the Applicant in relation to his Type 2 Diabetes in 2015.

c. A Direction that the Applicant sign a consent permitting the TTC to obtain an entire copy of the file from the Ministry of Transportation (“MTO”) that pertains to the Applicant’s application for a CZ licence between September 2015 and January 2016.

9In addition to these specific requests the respondent takes the position that the applicant should be directed to identify and deliver to it all arguably relevant documents that are in the applicant’s possession.

10As the Tribunal indicated in a Case Assessment Direction issued on May 7, 2015, the applicant’s medical condition is at the heart of the dispute in this case. The applicant argues that the respondent has not confirmed whether or not he is still considered to be in the hiring process and accordingly his medical documents are not relevant. It is not clear why the respondent’s position matters as the claim made in this case is that the applicant should have continued in the hiring process. The resolution of this dispute will require an assessment of the applicant’s medical condition in order to assess whether or not the respondent has breached its obligations under the Code. As such, the materials sought by the respondent appear to be arguably relevant.

11For these reasons the Request is granted.

Order

12The Tribunal makes the following Orders:

a. The applicant is directed to deliver all arguably documents in his possession to the respondent, other than those identified below, to the respondent within 14 days of the date of this interim decision.

b. Without limiting the generality of the Order above, the applicant is directed as follows:

i. Within 7 days of receiving a consent form from the respondent, provide written consent permitting the respondent to obtain a copy of the MTO’s entire file that pertains to the Applicant's application for a CZ licence between September 2015 and January 2016.

ii. Deliver to the respondent, within 21 days of the date of this interim decision, the clinical notes and records and reports of Dr. Pitcher (2014 to January 2016); and

iii. Deliver to the respondent, within 21 days of the date of this interim decision, the clinical notes and records of the treatment facility attended by the applicant in relation to his Type 2 Diabetes in 2015.