Human Rights Tribunal of Ontario
B E T W E E N:
Scott Coutts
Applicant
-and-
Toronto Transit Commission
Respondent
-and-
Amalgamated Transit Union, Local 113
Affected Party
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Coutts v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Scott Coutts, Applicant
Self-represented
Toronto Transit Commission, Respondent
Marni Tolensky, Counsel
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment. In particular, the applicant alleges that the respondent has, through its Occupational Health and Claims Management (“OHCM”) department, discriminated against him by requiring unnecessary medical information, improperly administering his sick benefit claims, and failing to properly accommodate his disability.
2On December 1, 2015, the respondent filed a Request for Order During Proceedings (“Request”) asking that the Tribunal grant an order:
authorizing the TTC to access, use and/or disclose the applicant’s personal health information contained in his OHCM file, from January 2013 to the present, to the extent that this information relates to or is an issue in the Application, for the purpose of responding to and defending the Application;
permitting the TTC to review and/or disclose the relevant documents in the OHCM file (containing personal health information) with individuals who are expected to be witnesses in respect of the specific documents in the files as well as individuals whose employment duties include providing instructions and/or responding to the Application, and
granting an extension of the deadline to file its Response of at least 35 days from the date the Tribunal issues its order with respect to these Requests.
3The respondent submitted that the applicant’s allegations relate to his medical conditions, restrictions and the respondent’s accommodation of his medical restrictions, and that the applicant has therefore placed these matters in issue before the Tribunal. It submits that the majority of the relevant documents are contained in the OHCM file and it requires access to them to make full answer and defence to the Application.
4The respondent also submits that it is uncertain whether it is entitled to access this information absent the applicant’s consent or a Tribunal order. The respondent notes that though personal health information may be used and disclosed for the purposes of a legal proceeding under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”), under the Occupational Health and Safety Act, R.S.O. 1990, c.O.1 (“OHSA”) such use or disclosure may require either the consent of the employee or an order of the Tribunal.
5The applicant filed a response to the request, opposing the request on the basis that an employer is not allowed to have access to an employee’s health file, and that this has been upheld by the Information and Privacy Commissioner.
6The union did not file a response to the respondent’s request, and the time for doing so has passed.
ANALYSIS AND DECISION
7The Tribunal has made it clear that there are very limited circumstances where a respondent will not be required to comply with Rule 8 of the Tribunal’s Rules of Procedure by filing a full response. See Robinson v. Orillia Soldiers’ Memorial Hospital, 2013 HRTO 74 at paras 15-17. The Tribunal has, however, ordered early disclosure where it is necessary in order to ensure that the respondent is in a position to meaningfully respond to the Application. See Bryer v. Toronto (City), 2010 HRTO 2389; O’Brien v. Toronto Transit Commission, 2012 HRTO 170, and Feres v. Toronto Transit Commission, 2014 HRTO 980.
8In the latter two cases, both involving the same respondent as in the present case, the Tribunal granted access to the OHCM file, but on a limited basis to ensure that access was limited to the time period and medical issues relevant to the application.
9The applicant is correct that he has a privacy interest in his medical documentation, protected by legislation. However, as noted by the respondent, there are specific exemptions to the general protections when the parties are involved in legal proceedings. Dewdney v. Toronto Transit Commission, 2012 HRTO 2212 (“Dewdney”) addressed a similar request to access the OHCM file prior to filing a Response, and also addressed the application of the PHIPA and OHSA with respect to access and disclosure of medical information in an application before the Tribunal. The decision held, at paras 43-46:
While I appreciate the applicant’s concerns regarding her privacy, in light of the nature and scope of the allegations made in the Application and what is permissible use and disclosure prescribed by the PHIPA and the OHSA, I agree with the respondents that they should be allowed to disclose the content of the applicant’s OHCM files with their potential witnesses, including OHCM employees, Sun Life employees, medical personnel and experts, to facilitate their ability to fully respond to and defend against the Application and/or because those individuals may be called to give evidence at the hearing in relation to the documentation.
The applicant’s concerns may, to some extent, be alleviated by the respondents’ assurance to handle the health information “on a need to know basis”. The respondents are cautioned to ensure that their use and disclosure of the information is no more than is reasonably necessary to facilitate preparation of the Response and defend against the Application.
In addition, the Tribunal directs counsel for the respondents to state and confirm with the potential witnesses with whom the health information is canvassed that they are to strictly maintain the confidentiality of the information. All parties are reminded of Rule 3.3 of the Tribunal’s Rules of Practice, which states:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
In summary, pursuant to section 63(2) of OHSA and section 49(1) of PHIPA which permit disclosure when complying with a legal order and when participating in a proceeding as a witness, and in accordance with the Tribunal’s Rules of Procedure, I permit the respondents to use the applicant’s health information and allow disclosure with potential witnesses in relation to that information, specifically OHCM employees, Sun Life employees, medical personnel and experts, for the purposes of participating in this proceeding.
10I agree with the approach taken in Dewdney. I am satisfied that the documents requested from the OHCM file are arguably relevant and that the respondent requires access to them in order to meaningfully respond to the Application.
11I also agree with the analysis at paras 50-55 in Dewdney that if disclosure of the OHCM file is granted to the respondent, a copy of the file, subject to privilege, should also be provided to the applicant. If the respondent will be relying on documents in the OHCM file in its response, the applicant must also have access to the medical file in order to provide a meaningful Reply.
Time period
12The applicant indicates that he has had health issues “over the past 2 yrs.”, though he did not give a precise date as to when his health issues first became an issue with respect to his employment. The respondent did not request access to the entire OHCM file, but only from January 2013 to the present, and only to the extent that it relates to or is an issue in the Application.
13I find that the timeframe requested, though somewhat more than 2 years, is appropriate given the fact that the applicant did not indicate a specific date when his health issues first arose, and given the further limitation that access be limited to issues raised in the Application.
Extension of Time
14In the circumstances, given that the materials contained in the OHCM file are central to the allegations raised in the Application, I find it appropriate to grant the respondent an extension of 35 days from the date of this Interim Order to file its Response.
ORDER
15The Tribunal orders the following:
a) The respondent is granted disclosure and access to the OHCM file from January 2013 onwards to the extent that it relates to or is an issue raised in the Application for the purposes of responding to the Application;
b) Upon receipt of the documents as identified in (a), the respondent is required to promptly provide the applicant with a copy of the documents along with specifying when a document is redacted due to privilege, identifying the general nature of the document and what category of privilege is being claimed. The respondent is also required to confirm with the Tribunal that the disclosure was delivered to the applicant;
c) The respondent’s advisors, individuals giving instructions to counsel, and potential witnesses in respect of the specific documents are the only individuals permitted to access, review and use the applicant’s health information as identified in (a);
d) Counsel for the respondent is required to state and confirm with all individuals with whom the health information is canvassed that the individuals are required to strictly maintain confidentiality of the information in accordance with the Tribunal’s rules; and
e) The respondent is required to file its Response within 35 days from the date of this Interim Decision.
16I am not seized.
Dated at Toronto, this 5th day of January, 2016
“Signed By”
Bruce Best
Vice-chair