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HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Kristina Arena
Applicant
-and-
Sheridan College
Respondent
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A N D B E T W E E N:
Kristina Arena
Applicant
-and-
Sheridan College, Dr. Jeff Zabudsky, Richard Finch, Ryan Piper,
Paula Seeley, Sheikh Azaad and Mary Louise Noce
Respondents
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**INTERIM DECISION**
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**Adjudicator:** Sheri Price
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**Date:** April 21, 2016
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**Citation:** 2016 HRTO 529
**Indexed as:** Arena v. Sheridan College
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[1] This Interim Decision confirms in writing oral rulings made by me during an April 19, 2016 conference call.
## Respondent’s Objection to Applicant Witnesses
[2] In January 2016, shortly before the first scheduled hearing date in this matter, the respondent College filed a Request for an Order during Proceedings (“RFOP”) objecting to the applicant’s proposed witnesses, Mr. Van Woudenberg and Ms. Butler. The applicant filed a written response to the RFOP.
[3] Having reviewed the applicant’s witness statements for Mr. Van Woudenberg and Ms. Butler and the parties’ submissions on this issue, I ruled during the April 19, 2016 conference call that I would not permit the applicant to call Mr. Van Woudenberg as a witness in this proceeding, but would allow the applicant to call Ms. Butler.
[4] According to the witness statement submitted and the applicant’s response to the respondent’s RFOP, the applicant seeks to call Mr. Van Woudenberg to establish that the respondent College essentially infringed Mr. Van Woudenberg’s rights under the Code. This is not probative of the issue before me in this case, which is whether the respondent infringed the applicant’s rights under the Code. By calling Mr. Van Woudenberg, the applicant is attempting to establish the respondent’s bad character and/or propensity to discriminate. The applicant describes this as similar fact evidence. However, such evidence is not admissible in the case at hand because its probative value, if any, is outweighed by its prejudicial effect, particularly its potential to unduly lengthen the hearing and distract from the issues to be determined. The applicant also suggests that Mr. Van Woudenberg could testify about the impact of the respondent’s alleged actions on the applicant based on what the applicant told him about this. Such proposed evidence of prior consistent statements by the applicant violates the rule against oath-helping and is not admissible. Moreover, none of exceptions to the rule that prior consistent statements are inadmissible appear to be engaged here, nor are they alleged.
[5] As for Leslie Butler, although certain aspects of her proposed testimony may not be admitted on the basis of relevance, hearsay or otherwise, I am satisfied that Ms. Butler’s proposed evidence about her own observations of how certain employees and/or agents of the respondent treated the applicant, as well as her evidence about the respondent’s ability to grant the applicant’s accommodation request and/or to meet the applicant’s accommodation needs is relevant and will be permitted.
[6] Any objections that the respondent(s) may raise with respect to particular aspects of Ms. Butler’s evidence will be dealt with in the course of hearing Ms. Butler’s evidence.
## Respondent’s request that Dr. Bearisto’s medical notes and/or opinions be given no weight if he is not called to testify
[7] In response to the respondent’s RFOP, the applicant has indicated that she will call Dr. Bearisto as a witness and make him available for cross-examination. Accordingly, as indicated during the April 19, 2016 conference call, it is no longer necessary for me to determine this aspect of the respondent’s RFOP.
## Production of documents
[8] For reasons given during the April 19, 2016 conference call, I ordered production of the following documents on the basis that they meet the threshold of arguable relevance on at least one party’s theory of the case.
### Dr. Bearisto’s clinical file
[9] The respondents seek an order requiring the applicant to produce a copy of Dr. Bearisto’s entire clinical file to the respondents, or alternatively an order requiring the applicant to sign a consent authorizing her doctor, Dr. Bearisto, to produce such documents to the respondents directly.
[10] A central issue in this case is whether, because of one or more disabilities, the applicant required modifications to her teaching schedule and/or whether she was prevented from working at all during certain periods of time. The essence of the applicant’s claim is that she had certain disability-related needs that required accommodation, and that the respondent failed to properly accommodate such needs during the relevant period. She relies on Dr. Bearisto’s medical reports in support of this claim.
[11] The respondent contends that Dr. Bearisto’s conclusions and opinions about the applicant’s need for disability-related accommodation are not reliable, that Dr. Bearisto merely characterized the applicant’s preferences about her teaching schedule as “needs” and that he was acting as the applicant’s advocate.
[12] As a matter of fairness, the respondent is entitled to test Dr. Bearisto’s evidence and the basis for his conclusions and/or opinions about the applicant’s disabilities and her related need for accommodation and/or her inability to work.
[13] The applicant resists production of documents from Dr. Bearisto’s clinical file on the basis that the respondents already have ample medical documentation about her need for accommodation, and that further production is unnecessary. However, as I explained during the April 19, 2016 conference call, the test for the production of documents is arguable relevance, not necessity.
[14] Accordingly, during the conference call, I ordered the applicant to request a copy of Dr. Bearisto’s file from April 1, 2008 onwards within seven (7) days (i.e. by April 26, 2016) and to produce the following documents to the respondents within 30 days (i.e. by May 19, 2016):
Any and all documents in Dr. Bearisto’s clinical file from April 1, 2008 onwards that relate to:
- The medical conditions and/or disabilities that contributed to the applicant’s need for accommodation and/or her inability to work from April 1, 2008 onwards;
- Any references to the applicant’s need and/or request for accommodation in the respondent’s workplace;
- Any references to the applicant’s employment and/or teaching work elsewhere, such as the University of Windsor;
- In the event that the applicant is seeking a remedy against the respondent(s) on the basis that any of the applicant’s medical conditions and/or disabilities were caused and/or exacerbated by the respondents’ infringement of her rights under the Code, documents relating to the exacerbation and/or cause of the applicant’s disabilities, in respect of the period when the applicant claims such medical conditions and/or disabilities were caused and/or exacerbated by the respondents’ actions.
[15] For the sake of clarity, the applicant is not required to produce a copy of Dr. Bearisto’s entire file to the respondents. As I explained during the conference call, the applicant is entitled to remove and/or redact any references or documents that are not identified above, such as entries in Dr. Bearisto’s clinical notes that have nothing to do with the medical conditions in respect of which the applicant sought accommodation. If, having reviewed the file, there are any documents that the applicant objects to producing on the basis of relevance or otherwise, then she may withhold these from the respondents for the time being. However, it is very important that the applicant keep a complete and unredacted copy of Dr. Bearisto’s file so that any dispute as to whether documents have been improperly withheld may be adjudicated by me, possibly by comparing the complete and unredacted documents with those produced to the respondents.
[16] I also clarified during the conference call that even if the applicant redacts the content of certain entries in Dr. Bearisto’s clinical notes from April 1, 2008 onwards on the basis that they are not arguably relevant (e.g. if the applicant saw Dr. Bearisto on a given date regarding a medical issue that has nothing to do with the issues in this case), the notes produced should still show the dates of all of the applicant’s appointments with Dr. Bearisto.
[17] Finally, I note that I did not find it appropriate to order the applicant to consent to the release of any of her medical documents by her doctor to the respondents directly.
[18] In the normal course, parties are required to produce to one another documents in their possession, power or control that are arguably relevant, unless there is a compelling reason not to produce such documents, such as privilege. In my view, an order that a party consent to the third party release of documents in their possession or control would only rarely be made by the Tribunal in extraordinary circumstances. Such an order would not be appropriate in this case.
### SunLife file
[19] The respondents seek an order requiring the applicant to produce a copy of her entire Long Term Disability claim/medical file held by SunLife or alternatively an order requiring the applicant to sign a consent authorizing SunLife to release such documents to the respondents directly.
[20] During the conference call, I also ordered the applicant to request, within seven (7) days (i.e. by April 26, 2016) a copy of her SunLife Long Term Disability claim file from the insurer and to produce the following arguably relevant documents to the respondents within 30 days (i.e. by May 19, 2016):
Any and all documents relating to:
- the applicant’s inability to work because of disabilty;
- the applicant’s need or request for accommodation or lack thereof;
- the applicant’s employment or contract work other than at the respondent College
[21] I declined to order the applicant to consent to the release of the SunLife documents to the respondents directly for the same reason I declined to order a consent to the release of her medical records by Dr. Bearisto.
[22] During the call, I also addressed the applicant’s request that the respondents produce documents in their possession or control related to the applicant’s SunLife Long Term Disability claim. Specifically, I ordered the respondent to produce the following to the applicant within 30 days (i.e. by May 19, 2016):
Any and all documents or notes related to the applicant’s SunLife claim, unless they have already been produced to the applicant.
### University of Windsor information
[23] During the conference call, I found that the following documents that may be in the University of Windsor’s possession or control are arguably relevant to one or more issues to be determined in this case:
Documents in the University’s payroll and/or human resources files for the period from April 1, 2008 onwards regarding the applicant’s employment or teaching contracts with the University, including copies of any contracts or offers of employment, payroll records, and teaching schedules, including the dates and times of any courses taught by the applicant.
[24] Since the above-noted information is in the University of Windsor’s possession and/or control, and does not appear to be the sort of information that the applicant may obtain as a matter of right (unlike her medical information), I found it appropriate to direct the University of Windsor to produce the information in question to the parties directly, subject to any objection the University may wish to raise with respect to the production order. No party objected to such an order being made.
[25] A production order directing the University of Windsor to produce the arguably relevant documents to the parties will be issued separately.
### Tax documents and T4s related to the applicant’s employment income
[26] On the basis that they are arguably relevant to one or more issued to be determined, I also ordered the applicant to produce to the respondent, within 30 days (i.e. by May 19, 2016), copies of her tax returns for the 2008 tax year onwards, including T4 slips. However, the applicant is only required to provide information relating to her income from employment and/or teaching contracts. The applicant may redact other information from her tax returns, as other information is not arguably relevant.
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Dated at Toronto, this 21st day of April, 2016.
“Signed By”
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Sheri D. Price
Vice-chair
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minicounsel