Human Rights Tribunal of Ontario
B E T W E E N:
Sandra Faulkner
Applicant
-and-
Lakeridge Health
Respondent
-and-
Ontario Public Service Employees Union
Intervenor
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed As: Faulkner v. Lakeridge Health
WRITTEN SUBMISSIONS
Sandra Faulkner, Applicant
Self-represented
1In her Application the applicant alleged that the respondent discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Continuation dates for the hearing are scheduled for June 10 and 13, 2016.
2On April 11, 2016, the applicant filed two Request for Order During Proceedings (“RFOPs”) seeking production of the following materials:
a. proof that Ms. Jean Frolick and Ms. Gail Robinson completed 90 hours of refreshment courses in Histopathology prior to their transfers by the respondent;
b. an affidavit by an individual who appears to have been contracted by the Workplace Safety and Insurance Board (WSIB) outlining her contact with the respondent while the applicant was receiving WSIB benefits.
3The respondent did not request to the applicant’s RFOP and the time for doing so has now passed.
4It is well established that the test for production of documents is arguable relevance to an issue in dispute in the case.
5In my view, any documents in the respondent’s possession relating to the completion or non-completion of refreshment courses in Histopathology by Ms. Jean Frolick and Ms. Gail Robinson prior to their transfers by the respondent during the time period relevant to this Application are arguably relevant and must be produced. One of the issues in this case is whether the respondent met its duty to accommodate the applicant’s disability. The above documents are arguably relevant to that issue and must be produced within 14 days of this Interim Decision.
6The affidavit sought by the applicant is not a document that exists, nor would it be in the respondent’s possession if it did. If the applicant wishes to call the individual listed in her RFOP as a witness at the hearing, she must serve a summons to witness on that individual.
7However, the applicant should note that the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A includes the following provision that makes certain persons not compellable as witnesses in proceedings before courts and tribunals:
(1) The following persons are not compellable witnesses before a court or tribunal respecting any information or material furnished to or obtained, made or received by them while acting within the scope of their employment under this Act:
Members of the board of directors of the Board.
The chair, vice-chairs and members of the Appeals Tribunal.
Employees of the Board or of the Appeals Tribunal.
Persons employed in the Office of the Worker Adviser or the Office of the Employer Adviser.
Persons who are engaged by the Board or the Appeals Tribunal to conduct an examination, investigation, inquiry, inspection or test or who are authorized by the Board or the Appeals Tribunal to perform any function.
Health care practitioners providing information under section 37.
8Although it is unclear at present, the individual that the applicant referred to in her RFOP may not be compellable as a witness under item 3 or 6 of s. 180.
order
9The Tribunal orders as follows:
a. No later than 14 days from the date of this Interim Decision, the respondent must produce to the applicant and file with the Tribunal, any documents in its possession relating to the completion or non-completion of refreshment courses in Histopathology by Ms. Jean Frolick and Ms. Gail Robinson prior to their transfers by the respondent during the time period relevant to this Application.
b. In the event that the respondent has no such documents in its possession, it must confirm this in writing to the applicant and the Tribunal no later than 14 days from the date of this Interim Decision.
Dated at Toronto, this 28th day of April, 2016.
“signed by”
Jo-Anne Pickel
Vice-chair