Dickson v. Quinte Healthcare Corporation, 2016 HRTO 52

Human Rights Tribunal of Ontario

B E T W E E N:

Teresa Dickson

Applicant

-and-

Quinte Healthcare Corporation

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: January 13, 2016

Citation: 2016 HRTO 52

Indexed as: Dickson v. Quinte Healthcare Corporation

WRITTEN SUBMISSIONS

Teresa Dickson, Applicant

Self-represented

Quinte Healthcare Corporation, Respondent

Maureen A. Houston, Counsel

1The purpose of this Interim Decision is to address the respondent’s request that the Tribunal make an order to facilitate access to the applicant’s medical records held by the respondent’s occupational health service provider, Walsh & Associates (“Walsh”).

2On August 20, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against her with respect to employment because of her disability and sex, and subjected her to reprisal. Her main allegation is that the respondent failed to accommodate her disability-related needs up to the point of undue hardship when it refused to allow her to return to work.

3On November 6, 2015, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested that the Tribunal make the following orders:

1. The applicant shall consent to the release of her occupational health file in the possession of Walsh to the respondent.

2. The respondent shall file a Response to the Application 35 days following the receipt of the occupational health file.

4In its submissions in support of its request, the respondent stated that, for the purpose of filing its Response to the Application, it has asked the applicant to execute a consent form granting it access to medical records on her which are held by Walsh, but she has refused to do so. The respondent stated that Walsh will not release any such records without the consent of the applicant because of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended, which requires such consent. The respondent stated that the applicant has put her medical condition and the respondent’s efforts to accommodate her restrictions at issue, and the respondent is therefore unable to adequately respond to the Application without having had the opportunity to review such records.

5On November 9, 2015, the applicant filed a letter in response to the respondent’s RFOP, but it is not clear to me what her position is with respect to the respondent’s request.

6Rule 16 of the Tribunal’s Rules of Procedure contemplates that parties to an Application will not be required to exchange arguably relevant documents until 21 days after the Notice of Hearing is sent out by the Tribunal, which in the normal course is after the Application, Response and any Reply have been filed.

7Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete Response. See Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180 at para 8. However, the Tribunal has also recognized that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that a respondent is in a position to meaningfully respond to an Application. See Bryer v. (City) Toronto, 2010 HRTO 2389; Johnston v. Toronto Transit Commission, 2011 HRTO 923; and Power v. Toronto Transit Commission, 2011 HRTO 1462.

8As with the employers in the cases cited above, the respondent has set up a special office on its premises to interact with its employees with respect to disability issues in order to ensure that employees’ medical information will be kept confidential in compliance with legislation. The fact that the respondent has established a system which protects its employees’ privacy does not change the fact that the records at issue are highly relevant with respect to the respondent’s interactions with the applicant.

9In my view, as in the cases cited above, the respondent will not be in a position to meaningfully respond to the allegations in the Application without access to medical records on the applicant which are held by Walsh. Specifically, it needs such access to explain how it treated the applicant, and why it acted as it did. Therefore, I find that it is appropriate to issue the orders requested by the respondent.

10The Tribunal therefore makes the following orders:

1. Within five days of the date of this Interim Decision, the applicant shall sign and provide a consent form to Walsh waiving confidentiality and granting the respondent and its counsel access to all medical records on her from January 14, 2014 onwards which are held by Walsh. If the applicant does not possess such a consent form, she shall obtain the appropriate form from Walsh.

2. Upon the request of the respondent or its counsel, Walsh or its designate shall release to them all medical records on the applicant from January 14, 2014 onwards which are held by Walsh.

3. Within 35 days of receiving the applicant’s medical records from Walsh, the respondent shall file a Response to the Application.

11If the applicant fails to sign and provide a consent form to Walsh, the respondent should file a further RFOP with written submissions addressing why the Application should be dismissed as an abuse of process.

12I am not seized of this matter.