Human Rights Tribunal of Ontario
B E T W E E N:
Nancy Carson Applicant
-and-
Children’s Hospital of Eastern Ontario Respondent
INTERIM DECISION
Adjudicator: David Muir Date: June 13, 2016 Citation: 2016 HRTO 798 Indexed as: Carson v. Children’s Hospital of Eastern Ontario
WRITTEN SUBMISSIONS
Nancy Carson, Applicant John Yach, Counsel
Children’s Hospital of Eastern Ontario, Respondent Raquel Chisholm, Counsel
1This is an Application filed 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 because of disability and reprisal. The respondent has not yet filed a Response which was due on May 30, 2016.
2On May 10, 2016, the respondent delivered and filed a Request for Order during Proceedings (“Request”) seeking that either the applicant consent to the disclosure of the documents held in her occupational health file or that the Tribunal order its production. In particular the respondent seeks the following two Orders if the applicant does not consent to the disclosure of this material:
a. An Order requiring the applicant to produce a complete copy of all documents in the OHW file or in the possession of OHW with respect to Ms. Nancy Carson dated from June 1, 2008, onwards including any reports prepared by OHW, the Workplace Safety Insurance Board ("WSIB") or any other party, treatment records, notes, correspondence, or documents in any form related to Ms. Carson, as well as any correspondence in which a physician or any other medical or para-medical personnel has been retained with respect to counselling or treatment indicating the instructions and the parameters of their participation, including any and all notes, correspondence, records, or documents in any form.; and,
b. An Order that The Hospital's legal counsel may disclose any or all of the OHW file to representatives of the Hospital on a 'need to know basis' for the purpose of the preparation of the Hospital's Response to the Application including but not limited to the Hospital's participation at any mediation held in this matter and its preparation for any hearing into this Application.
3The applicant opposes the Request.
Decision
4Absent exceptional circumstances, the Tribunal will not permit a request for particulars or production of documents to delay the filing of a complete response: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180. However, the Tribunal has also recognized that it is sometimes appropriate to order access to an internal medical file at an early stage in order to ensure that the respondents are in a position to meaningfully respond to the Application, see Bryer v. (City) Toronto, 2010 HRTO 2389, Johnston v. Toronto Transit Commission, 2011 HRTO 923, and Power v. Toronto Transit Commission, 2011 HRTO 1462.
5I am not satisfied that there are exceptional circumstances. I take the applicant’s point that the respondent made decisions about the applicant with information it had at the time whether provided by occupational health or not. It is not clear to me why in order to file a Response the respondent should be entitled to more information than it had at the time it made its decision. I also note the lack of congruity in the respondent getting more information than it had at the time on the one hand and the applicant not having access to the respondent’s documentary record of its deliberation based on the information it had to hand at the material times. I appreciate that there will be circumstances where the respondent will be entitled to access what is in a sense its own information but this does not appear to be the case here. The issues appear to have been reasonably well defined in terms of what the workplace concerns were. This of course does not mean that the materials in the occupational health file are not arguably relevant but that is not the test at this stage.
6If the parties are able to come to some arrangement between themselves with respect to pre-mediation production that is of course up to them and the Tribunal would likely concur with agreements about further extensions to deadlines for the completion of the pleadings in this case.
7The Request is denied and the respondent will deliver and file its Response no later than 14 days after the date of this Interim Decision. The Tribunal acknowledges the respondent’s request that it be entitled to amend its Response upon receipt of the occupational health file, if produced, at a later stage of the proceeding. Should it be necessary to do both parties may seek to amend their pleadings in light of any new information that is produced in this proceeding.
8I am not seized.
Dated at Toronto, this 13th day of June, 2016.
“signed by”
David Muir Vice-chair```