Espinoza v. The Regional Municipality of Peel Police Services Board, 2017 HRTO 1301

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Espinoza

Applicant

-and-

The Regional Municipality of Peel Police Services Board and Jean Vecchiarelli

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: October 4, 2017 Citation: 2017 HRTO 1301 Indexed as: Espinoza v. The Regional Municipality of Peel Police Services Board

WRITTEN SUBMISSIONS

Melissa Espinoza, Applicant Karie Ann Benham, Counsel

The Regional Municipality of Peel Police Services Board and Jean Vecchiarelli, Respondents Patty Murray, Counsel

1This Interim Decision is written to address the respondents’ Request for Order dated June 7, 2017 seeking production of certain medical documentation.

2By Request for Order dated June 7, 2017, the respondents sought an order from this Tribunal requiring the applicant to provide to them: (1) a complete copy of the clinical file of her family doctor, Dr. Kovouris, from the time period December 2013 to December 31, 2015 (including but not limited to any notes, reports, records of visits, referrals, etc.); (2) a complete copy of the clinical file of her psychologist from the time period December 2013 to December 31, 2015 (including but not limited to any notes, reports, records of visits, referrals, etc.); and (3) a complete and legible copy of her “member” statement and her “physician’s” statement made in support of her LTD application.

3On July 14, 2017, the Tribunal was notified that the applicant had recently retained counsel. Due to some personal issues, the applicant requested an extension for delivery of documents to July 31, 2017.

4By letter dated August 18, 2017, applicant counsel wrote to request an extension to provide a response to the respondents’ Request for Order to September 1, 2017, again due to personal issues. By letter dated August 21, 2017, the respondents wrote to oppose this extension request due to the applicant’s delay in responding to the Request for Order.

5By letter dated August 28, 2017, applicant counsel advised that, due to health issues, the applicant was not able to prepare a full response to the respondents’ Request for Order. However, the applicant did not indicate when she would be able to do so, or seek any further extension from the Tribunal to file her response. Instead, the applicant instructed her counsel to make brief submissions to the Tribunal in response to the respondents’ request.

6In my view, the time for the applicant to file a Response to Request for Order has long passed and the scheduled hearing dates of December 6 and 7, 2017 are fast approaching. In these circumstances, it is my view that no further delay in addressing the respondents’ Request for Order is warranted. I will treat the submissions made by applicant counsel as the applicant’s response to the Request for Order.

7The Application in this matter alleges discrimination in employment because of disability. Specifically, the applicant alleges that, following the end of a maternity leave (which effectively ended as of January 1, 2015), the applicant remained off work due to a disability. The Application alleges that the applicant had a telephone conversation with the personal respondent in March 2015, during which they discussed her medical status. The applicant alleges that she was asked whether her doctor would plan for modification of work duties, to which the applicant replied that she assumed so. She alleges that she was told by the personal respondent that she would have to plan to return to work as a patrol officer as there was no room for accommodation. This allegation is denied by the respondents.

8The Application alleges that in May 2015, the applicant received a telephone call from the personal respondent advising her that her LTD application had been denied. The applicant alleges that she was told that there were no accommodated spots available at that time, and that she would be put on an unpaid leave of absence. She further alleges that the personal respondent said that the applicant being off work came across as an extension of her maternity leave. This allegation is also denied by the respondents.

9The Application alleges that in September 2015, the personal respondent refused to provide the applicant with an employment letter indicating a return to work date of December 20, 2015, as indicated by her doctor. The applicant alleges that she was told that this date was too far off to determine whether the applicant would be returning to work.

10The Application alleges that she felt like she had no choice but to resign her position with the Peel Regional Police Service effective December 21, 2015, because she needed to look after herself without the stress and anxiety of returning to work when she was not ready. Significantly, the Application claims monetary compensation for loss of income representing the 15 years of service required before the applicant was eligible to retire.

11Obviously, a key issue in dispute between the parties is whether the applicant was capable of returning to work on even a modified basis at the relevant time. The applicant has clearly put her medical status in issue in this proceeding. I appreciate that being required to disclose medical records may feel to the applicant like an invasion of her privacy. But such disclosure is required in order to ensure both that this Tribunal has the necessary medical evidence upon which to determine the matters at issue, and so that the respondents have the necessary medical evidence upon which to be able to assess and perhaps challenge the applicant’s claims. This is simply the result of the commencement of litigation in which an applicant puts her disability and ability to return to work at issue.

12There are protections available to parties who are required to disclose sensitive medical information. First, this Tribunal’s Rules of Procedure provide that no documents disclosed in the context of a Tribunal proceeding can be used or relied upon for any purpose other than the Tribunal proceeding. This serves to protect the applicant from having her medical information disclosed more broadly. Second, in rendering its decisions in such cases, the Tribunal will endeavour to the greatest extent possible to minimize any disclosure of sensitive medical information, except to the extent that this is required in order to provide proper reasons for its decisions.

13In my view, the medical records generally sought by the respondents are arguably relevant to the matters at issue in this proceeding, and as such need to be provided by the applicant. However, I say this with some restrictions. First, in my view, the time period for which the respondents seek disclosure is overbroad. While I appreciate that the applicant went off work initially in December 2013 for medical reasons in advance of her maternity leave, it is my view that the relevant period for disclosure of medical records commences following the end of the applicant’s maternity leave, which effectively was as of January 1, 2015. The last relevant date in my view is December 21, 2015, when the applicant tendered her resignation.

14Second, given that records are sought from the applicant’s family doctor, who may have been treating any number of unrelated medical issues, it is my view that the family doctor should be required only to disclose any medical records that pertain to the applicant’s health as it may have affected her ability to return to work or that pertain to any work-related issues.

15Third, with regard to the psychologist’s records, I am concerned about the scope of required disclosure to the extent that it touches upon personal and private matters that are not necessary in order to assess the applicant’s medical condition and ability to return to work during the relevant period. In my view, these records should be redacted to remove any private or personal matters that the applicant may have discussed with her psychologist, while disclosing any notes or records regarding symptoms or restrictions that the applicant may have discussed with the psychologist and any notes or records pertaining to the applicant’s ability to return to work or any work-related issues.

16In response to the applicant’s submission that it should suffice to order disclosure of a full report from any attending physician along with specific documents that the respondent seeks, it is my view that, subject to the restrictions above, the respondents are entitled not only to any report but also to the underlying medical records that provide support for what is contained in the report.

17If the applicant requires any direction regarding the disclosure of medical records I have ordered, such direction may be sought from me through the Tribunal’s Registrar.

18I am aware that it can take some time to obtain and review medical records for disclosure, and that the deadline of October 23, 2017 for the parties to file their hearing materials is approaching. In the circumstances, I am ordering the applicant to disclose the medical records I have ordered to be produced by November 3, 2017, and extending the time for the parties to file their hearing materials to November 15, 2017.

19In light of the applicant’s continuing health issues, I am hopeful that her counsel can assist in obtaining the applicant’s consent for disclosure of these medical records and that counsel can work with the applicant’s doctors to ensure that the deadline for disclosure of these records to the respondents is met.

ORDER

20For the foregoing reasons, I hereby make the following order:

a. By no later than November 3, 2017, the applicant shall disclose to the respondents:

i. a complete copy of the clinical file of her family doctor, Dr. Kovouris, from the time period January 1, 2015 to December 21, 2015 (including but not limited to any notes, reports, records of visits, referrals, etc.), that pertain to the applicant’s health as it may have affected her ability to return to work or that pertain to any work-related issues,

ii. a complete copy of the clinical file of her psychologist from the time period January 1, 2015 to December 21, 2015 (including but not limited to any notes, reports, records of visits, referrals, etc.), with these records redacted to remove any private or personal matters that the applicant may have discussed with her psychologist, while disclosing any notes or records regarding symptoms or restrictions that the applicant may have discussed with the psychologist and any notes or records pertaining to the applicant’s ability to return to work or work-related issues, and

iii. a complete and legible copy of her “member” statement and her “physician’s” statement made in support of her LTD application;

b. If the applicant requires any direction regarding the disclosure of medical records I have ordered, such direction may be sought from me through the Tribunal’s Registrar; and

c. The deadline for the parties to serve and file their hearing materials in accordance with Rules 16 and 17 is extended to November 15, 2017.