McLaughlin v. Hollyburn Properties, 2016 HRTO 55

Human Rights Tribunal of Ontario

B E T W E E N:

John McLaughlin Applicant

-and-

Hollyburn Properties. Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: January 13, 2016 Citation: 2016 HRTO 55 Indexed as: McLaughlin v. Hollyburn Properties

WRITTEN SUBMISSIONS

John McLaughlin, Applicant Self-represented

Hollyburn Properties, Respondent David Fine, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of disability and record of offences.

2The applicant identified himself as suffering from post-traumatic stress disorder ("PTSD") and alleges that the respondent failed to accommodate his needs arising from that disability. The applicant also alleges that the respondent subjected him to undue scrutiny regarding criminal charges that had been laid against him. Amongst other things, the applicant alleges that the respondent's actions have caused him to suffer anxiety and panic attacks.

3On November 13, 2015, the respondent filed a Request for an Order During Proceedings seeking production of the following:

1. All medical records, including reports, clinical notes, test results, counselling records and hospital records relating to treatment of the applicant of a psychiatric or psychological nature, whether in his possession or his doctors' or treatment providers' possession, including treatment for post-traumatic stress disorder, anger management, suicidal tendencies and season affective disorder, from April 2, 2010 to the present;
2. OHIP's list of personal claims relating to the applicant, including a list of treatment providers, from April 2, 2010 to the present;
3. All documents in the applicant's possession or in the possession of others in connection with that conviction on October 6, 2015 of a criminal offense, including Information's, Summary of Charges, Certificates of Conviction, police reports, documents arising out of the police investigation and documents or reports relating to sentencing;
4. All documents relating to a pending criminal charge with respect to causing a disturbance, including Information's and Summary of Charges, police reports and documents arising out of the police investigation;
5. All documents relating to employment of the applicant since May 21, 2015 (the date on which the respondent dismissed the applicant).

4The applicant filed a Response to a Request for an Order on January 6, 2016 opposing the request. The applicant submitted that he provided the respondent with several documents related to his condition over a period of about one year prior to October 2014, when he went on a medical leave of absence. The applicant submitted that the respondent's interest in his medical file is malicious with the intent to discredit and embarrass him. The applicant submitted that the Request amounts to a "Hail Mary pass" and that his privacy should not be breached for such a purpose.

Analysis and Decision

5At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. "Arguable relevance" is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. The fact that the Tribunal finds a document to arguably relevant does not necessarily mean that the document will be admissible evidence at a hearing.

Medical Records

6The applicant is naturally concerned about disclosing medical information, which is sensitive and generally considered to be confidential. The applicant, however, has put his medical condition in issue and in such circumstances the Tribunal will generally order disclosure of medical records. In this regard, I adopt the discussion of this issue in Baldeo v. Securitas Canada Ltd., 2015 HRTO 1395 at paragraphs 4 and 5, as follows:

I appreciate that the applicant may consider her medical documentation to be confidential and sensitive. In the ordinary course, the confidentiality of medical documentation is respected and protected. However, this is a legal proceeding commenced by the applicant in which she has put her medical conditions and restrictions in issue in two ways: (1) by alleging that she has certain documented medical conditions and restrictions that were not accommodated by the respondent; and (2) in her description of the alleged impact on her of the violation of her rights under the Code.

In any proceeding where an applicant puts medical conditions and restrictions and the medical impact on her in issue, medical documentation that is arguably relevant to those issues must be disclosed in accordance with the Tribunal's Rules of Procedure. While the Tribunal's Rules do not require the disclosure of documents that are subject to "privilege", legally recognized privilege does not extend to medical documentation prepared in the ordinary context of an applicant seeking or receiving medical treatment. Quite simply, arguably relevant medical documentation in the applicant's possession needs to be disclosed to the respondent. Further, in order for the applicant to succeed in this proceeding, she will need to be able to prove that she has a disability or disabilities within the meaning of the Code, that these disabilities resulted in needs that required accommodation by the respondent, and that she brought these needs to the respondent's attention. All of this will require the applicant to provide medical documentation.

7As noted above, the applicant alleges that the respondent did not accommodate his needs related PTSD and that the respondent's actions towards him caused him to suffer anxiety and panic attacks. These conditions are therefore clearly in issue and medical information regarding them is arguably relevant and should be disclosed. In my view the applicant has not made any allegations regarding anger management, suicidal tendencies and season affective disorder and I find that medical information regarding these issues is not arguably relevant. In my view, the period requested by the respondent, back to April 2, 2010, is overly long. In my view, the appropriate period is the period of the applicant's employment, which began on April 2, 2013.

OHIP Records

8The respondent submitted that the applicant's OHIP record is necessary because "Upon production of that document the respondent will be in a position to determine what medical records are really relevant to the issues in this matter.". In my view, this amounts to a classic fishing expedition, as the respondent requests the record in the hopes that it may identify arguably relevant documents. This request is also redundant In light of my ruling that the applicant must disclose certain medical evidence.

Police/Criminal Records

9"Record of offences" is defined at section 10 of the Code as follows:

"record of offences" means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

In his Application, the applicant indicated that he was charged with several offences under the Criminal Code and that he has not received a pardon. The respondent included the request it made to the applicant to disclose documents, including those related to the applicant's criminal matters. The respondent stated that it understood that the applicant had been convicted of an offence on October 6, 2015. In his response to the respondent's demand for documents, dated November 4, 2015, which the respondent also submitted, the applicant stated that several of the charges against him were withdrawn and that he pleaded guilty to one charge, but received a discharge with probation. The applicant stated that another charge was pending, but he expected it to be withdrawn. Accordingly, it appears clear that the applicant had neither been convicted nor pardoned in the period material to this Application, which runs to May 21, 2015, at the latest, when the respondent terminated the applicant's employment.

10In these circumstances, it seems clear that the prohibited ground of discrimination of record of offences does not apply to this matter. See de Pelham v. Mytrak Health Systems, 2009 HRTO 172 and I am not inclined to order production with respect to the applicant's criminal matters. Rather, in light of the definition of "record of offences" and the Tribunal's case law on this issue, the applicant should advise the Tribunal and respondent whether he intends to continue to pursue the prohibited ground of record of offences in this proceeding.

Post Dismissal Employment Records

11The applicant's efforts in seeking new employment and whether he has obtained new employment following the termination of his employment are relevant to the issue of remedy. Accordingly, the applicant must produce all information regarding his efforts to find work (e.g., the jobs he has applied for, jobs that he has been offered, etc.) and information regarding any employment he has obtained since the termination of his employment with the respondent (e.g., name of employer, when obtained, income, duties etc.).

Order

12The Tribunal orders as follows:

1. By no later than February 16, 2016, the applicant shall obtain and disclose to the respondent all medical records, including reports, clinical notes, test results, counselling records and hospital records relating to treatment of the applicant for PTSD and for anxiety and panic disorders;
2. By no later than February 16, 2016, the applicant shall disclose to the respondent all information regarding the applicant's efforts to secure new employment following the termination of his employment with the respondent, as described in paragraph 11, above; and,
3. By no later than February 16, 2016, the applicant shall advise the Tribunal and the respondent whether he intends to continue to pursue the "record of offences" as a prohibited ground of discrimination in this Application.

13I am not seized.