Delgado v. Children’s Aid Society of Toronto, 2016 HRTO 597

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sylvia Delgado

Applicant

-and-

Children’s Aid Society of Toronto and Jill St. Clair

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 5, 2016

Citation: 2016 HRTO 597

Indexed as: Delgado v. Children’s Aid Society of Toronto

WRITTEN SUBMISSIONS

Sylvia Delgado, Applicant

Beth Walden, Counsel

Children’s Aid Society of Toronto and Jill St. Clair, Respondents

Daniel Fogel, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2The Application was initially scheduled for a hearing on April 21 and 22, 2016, by Notice of Hearing dated November 10, 2015. Under the original Notice of Hearing, the parties were to disclose their arguably relevant documents by December 1, 2015. The disclosure date was subsequently extended by the Tribunal to December 10, 2015.

3On December 4, 2015, the applicant advised the parties that she had no arguably relevant documents in her possession at that time.

4On January 22, 2016, the respondents filed a Request for Order During Proceedings (“RFOP”) seeking production of the following documents:

a. All documents in the applicant’s possession or control relating to her allegations that Ms. St. Clair made case decisions without emailing the applicant, and that Ms. St. Clair and Ms. Enright actively tried to prevent the applicant from participating in case decisions… including any documents demonstrating when and where the meetings took place (with full client names redacted and replaced with initials and client case numbers);

b. All documents in the applicant’s possession or control which demonstrate the alleged practice for the supervisor and team to send a card or congratulate people on milestones; and

c. All clinical notes and records from April 17, 2012 to present, of any health professional, including but not limited to Dr. Vaidya and D. Stephenson, who treated the applicant for stress.

5On January 27, 2016, a revised Notice of Hearing was issued scheduling the hearing for June 16 and 17, 2016. Under the revised Notice of Hearing, the parties were to disclose their arguably relevant documents by February 17, 2016 and their hearing documents by May 2, 2016.

6On February 18, 2016, an amended Notice of Hearing was issued changing the hearing to June 15 and 17, 2016. The disclosure dates remained the same.

7On February 24, 2016, the respondents renewed their January 22, 2016 RFOP.

8On February 25, 2016, the Tribunal issued a Case Assessment Direction directing the applicant to respond to the RFOP within 7 days. The applicant did not respond to the RFOP.

9On February 25, 2016, the applicant’s counsel reminded the Tribunal and the parties of her earlier correspondence on December 4, 2015 wherein the applicant stated that she had no arguably relevant documents in her possession at that time.

10By interim decision dated March 4, 2016 (2016 HRTO 295), the Tribunal ordered the applicant to produce the documents requested by the respondents, to the extent that they exist.

11On March 11, 2016, the applicant’s legal counsel wrote to the Tribunal, copied to the parties, and advised the following:

a. Due to inadvertence, the January 22, 2016 RFOP was not seen by counsel for the applicant;

b. At the time the February 24, 2016 correspondence was sent by the respondents renewing their production request, the applicant’s counsel was out of the country and did not return to Canada until March 1, 2016;

c. The applicant was on leave from her employment from November 7, 2015 to February 25, 2016 and did not have access to arguably relevant documents at work.

12In the March 11, 2016 letter, the applicant’s counsel sought direction from the Tribunal regarding the disclosure of confidential case notes by the applicant that are the property of the organizational respondent and relate to clients who are not involved in these proceedings. She also provided a list of arguably relevant documents, together with copies of the documents. These documents included an initial consultation report from Dawn Stephenson dated December 27, 2014. Finally, the applicant’s counsel advised that she was in the process of obtaining records from Dr. Vaidya, however she was away until March 19, 2016.

13On March 15, 2016, the respondents’ counsel requested the Tribunal to direct the applicant to specify which documents she believes are relevant and found on the organizational respondent’s system, and that the Tribunal direct the applicant to identify the documents by date, client’s initials and/or case numbers due to the confidential nature of the information. The organizational respondent would then determine whether there was any objection to disclosing them.

14By letter dated April 19, 2016, the respondents’ counsel submitted the applicant’s persistent non-compliance with the Tribunal’s requirements constituted an abuse of process and the Application should be dismissed as abandoned.

15The respondents repeated their request that the Application be dismissed on April 21, 2016.

16On April 25, 2016, the applicant’s counsel provided the following information relating to the production of arguably relevant documents:

a. The applicant first saw Ms. Stephenson in December 2014. The documents provided represent the entirety of her clinical notes and records which are arguably relevant to the issues in this case;

b. There are four additional pages of notes by Ms. Stephenson that do not relate to the applicant’s work related stress but rather, relate to her children, spouse, family and friends. The applicant requested that the Tribunal review these documents to determine whether they are relevant to the matters at issue;

c. The applicant requested direction on how CAS records are to be gathered and disclosed;

d. Dr. Vaidya’s report was disclosed. The applicant advised that Dr. Vaidya’s practice is not to provide copies of her clinical notes: should the respondent wish her clinical notes, an order from the Tribunal was required.

17On May 2, 2016, the parties disclosed their hearing documents.

18On May 2, 2016, the respondents requested direction from the Tribunal regarding their concerns about the applicant’s disclosure of arguably relevant documents, set out below:

a. The Tribunal ordered the applicant to disclose all clinical notes and records from April 17, 2012 to present, including but not limited to Dr. Vaidya and D. Stephenson. The applicant provided disclosure of two health professionals: that disclosure is incomplete;

b. The applicant can request production of documents in the possession of the organizational respondent by reference to relevant dates, client initials and case numbers.

outstanding PRODUCTION issues

Disclosure of all Clinical Notes and Records

19By interim decision dated March 4, 2016, the Tribunal ordered the applicant to produce all clinical notes and records from April 17, 2012 to present, of any health professional, including but not limited to Dr. Vaidya and D. Stephenson, who treated the applicant for stress, to the extent that these records exist. The clinical notes of Dr. Vaidya are included in this order and must be produced.

20The Tribunal’s order of March 4, 2016 includes the clinical notes and records of all health care professionals who treated the applicant for stress from April 17, 2012 to present. If there are health care providers, in addition to Dr. Vaidya and D. Stephenson, who treated the applicant for stress during this period, their records must be produced. If there are no additional health care providers who treated the applicant for stress during this period, the applicant should advise the respondents and the Tribunal.

Four Pages of Notes from Ms. Stephenson

21I have reviewed the four pages of notes from Ms. Stephenson and have concluded that they are not arguably relevant. They do not relate to the applicant’s experience of stress: they involve the applicant’s relationships with her spouse, family and friends. Those relationships are not in issue in this case.

Disclosure of Case Notes

22The applicant has sought direction from the Tribunal regarding the production of confidential records of her employer. The suggestion by respondents’ counsel makes good sense. The applicant should list the records that she is relying upon, by reference to relevant dates, client initials and case numbers. These records will then be produced by the respondent, subject to any objection being made. This will avoid any difficulty with the applicant producing confidential records that belong to the organizational respondent.

Respondents’ Abuse of Process Assertions

23In correspondence to the Tribunal, the respondents’ legal counsel has repeatedly asserted that the applicant’s conduct constitutes an abuse of process. I would say two things about this assertion. One, an assertion that a party’s conduct amounts to an abuse of process is a serious allegation and should not be made lightly. In this case, the applicant’s counsel provided an explanation for her failure to respond to the RFOP. Thereafter, there were issues around the production of arguably relevant documents and the Tribunal’s directions were sought. There was nothing about the applicant’s conduct that came close to an abuse of the Tribunal’s process.

24Two, asserting that a party has acted in a manner that constitutes an abuse of process should not be made in correspondence directed to the Tribunal. To make these assertions in correspondence to the Tribunal is not in keeping with Rule A7.1 of the common rules of the Social Justice Tribunals Ontario, which requires all persons participating in proceedings before the Tribunal to act in a manner that is courteous and respectful of other participants in the proceeding. If a party believes an opposing party has acted in a manner that constitutes an abuse of process and seeks a remedy for such abuse, that request must be put in an RFOP. This allows the responding party to respond and the Tribunal to make ruling. In the absence of a RFOP, such assertions should not be made in correspondence to the Tribunal.

order

25The applicant must produce the clinical notes of Dr. Vaidya within fourteen days of the date of this Interim Decision.

26The applicant must produce the clinical notes and records of any health care providers, other than Dr. Vaidya and D. Stephenson, who treated the applicant for stress during the period April 2012 to present, within fourteen days of the date of this Interim Decision. If there are no additional health care providers, the applicant must advise the parties and the Tribunal of that fact within fourteen days of the date of this Interim Decision.

27The applicant must advise the respondents which case notes she is relying upon by reference to relevant dates, client initials and case numbers with seven days of the date of this Interim Decision. Within fourteen days of the date of this Interim Decision, those notes should be disclosed by the organizational respondent, subject to any objections being made.