Michelle Leon v. Children’s Aid Society of Hamilton, 2016 HRTO 983

Human Rights Tribunal of Ontario

B E T W E E N:

Michelle Leon

Applicant

-and-

Children’s Aid Society of Hamilton

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: July 26, 2016

Citation: 2016 HRTO 983

Indexed as: Leon v. Children’s Aid Society of Hamilton

1A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), is scheduled for August 8 and 9, 2016 in Hamilton. The applicant alleges the respondent discriminated against her on the basis of disability when it changed a job offer to a conditional job offer because she requested accommodation measures, and the applicant withdrew this specific accommodation request as a result.

2The respondent filed a Form 10 Request for an Order During Proceedings in which it requested production of the following documents from the applicant:

a. All arguably relevant documents;

b. Family doctor’s medical file;

c. 2015 T4 slips;

d. 2015 Income Tax Return or Notice of Assessment;

e. 2016 statements of earnings and deductions from employment;

f. All offers of employment and/or contracts of employment you received from employer(s) you worked for subsequent to your resignation from The Children’s Aid Society of Hamilton; and

g. Will say statements for all witnesses, including the applicant.

3The applicant filed a Form 11 Response in which she objected to disclosure of her family doctor’s file, her 2015 T4’s and her will says, but provided much of the other requested documentation.

4This Interim Decision addresses the outstanding requests for documentation.

PRODUCTION REQUEST

Family Doctor’s File

5The respondent requests the applicant’s family doctor’s file alleging the applicant has not provided any documentation to substantiate having a Code-related disability or how long she has had the condition, nor has she provided any medical information relating to the allegations in paragraph 9 of the Application with respect to the effect of the respondent’s alleged actions on her emotional, physical and mental well-being. The respondent asserts that whether the applicant suffers from a Code-related disability and whether she suffered from any additional disabling condition as a result of the respondent’s conduct are at issue in the Application.

6The applicant in response produced her specialist’s file in its entirety, and produced a note from her family doctor in addition to one she provided to the respondent before she began employment with it. She argues her family doctor’s entire file is not required because she did not seek medical care each time she had pain; she has not disclosed her condition widely and does not want to disclose all her medical complications to her family doctor or specialist.

ANALYSIS AND DECISION REGARDING FAMILY DOCTOR’s FILE

7At 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. In cases where applicants have placed their medical condition at issue before the Tribunal, the Tribunal has required applicants to obtain and produce arguably relevant medical documents from their physicians and other medical practitioners. See, for example, Bosnitch v. Humber College Institute of Technology and Advanced Learning, 2014 HRTO 1245 and Baldeo v. Securitas Canada Ltd., 2015 HRTO 1395.

8The applicant’s medical condition is in issue in this Application and therefore medical information related to her condition is arguably relevant and should be disclosed. However, I agree with the applicant that her entire family doctor’s file is not required. It is however relevant that the applicant claims that she had a long-term, disabling condition at the time she was hired, and that the accommodation she had with her prior employer, which is the same as she requested from the respondent, assisted her symptom(s). It also is relevant that the applicant claims that the respondent’s actions affected her emotionally, physically and mentally.

9As such, the applicant shall provide her family doctor’s clinical notes for the past five years, namely from January 1, 2011 to the present. The applicant may redact any references that are not related to her back pain, the condition she asserts causes her back pain or to her emotional, physical and mental well-being as a result of the alleged actions of the respondent. The applicant shall also keep in her possession an unredacted copy of the family doctor’s clinical notes so that any dispute as to whether documents have been improperly withheld may be addressed, if necessary, by me.

10If the applicant redacts the content of certain entries in the family doctor’s clinical notes from January 1, 2011 to the present on the basis that she determines they are not arguably relevant, she shall not redact the dates that show when she attended appointments with her family doctor.

11With respect to the applicant’s valid concerns regarding privacy, it is important for the parties to note Rule 3.3 of the Tribunal’s Rules of Procedure that states as follows:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

2015 T4’s

12The respondent requests the applicant’s 2015 T4’s as relevant to her mitigation obligation. The applicant objects, asserting that the 2015 Notice of Assessment shows her total income from all sources.

ANALYSIS AND DECISION REGARDING T4’s

13The applicant has a duty to mitigate her losses and the disclosure of her T4’s is relevant to the issue of damages in the Application. The applicant shall produce her 2015 T4’s.

WILL SAYS

14The applicant states she does not require any will says. Rule 17 of the Tribunal’s Rules of Procedure states in part:

17.1 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.

17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

15If the applicant is the only person who will testify, then she must confirm that with the respondent and the Tribunal in writing, and she must also confirm with the Tribunal and the respondent in writing that her evidence will be as set out in the Application and Reply, if that is the case. However, if she intends to give any evidence that is not set out in the Application and Reply, she must provide that information in a will say statement so that the respondent is not caught by surprise.

ORDER AND DIRECTIONS

16By no later than August 2, 2016, the applicant shall deliver the following documents to the respondent and file them with the Tribunal along with a Form 23 Statement of Delivery evidencing delivery on the respondent:

a. A redacted copy of her family doctor’s file as set out in paragraph 9, above;

b. A copy of all of her T4’s for 2015;

c. A will say statement for any witnesses who will testify on behalf of the applicant, including the applicant herself, or written confirmation that her evidence will be as set out in the Application and Reply.

17The applicant shall keep in her possession an unredacted copy of her family doctor’s clinical notes from January 1, 2011 to present.

18By no later than August 5, 2016, the respondent shall deliver to the applicant its will say statements and file a copy of them with the Tribunal along with a Form 23 Statement of Delivery evidencing delivery on the applicant.