Marques v. Toronto Transit Commission, 2017 HRTO 1344

Human Rights Tribunal of Ontario

B E T W E E N:

Marcos Marques Applicant

-and-

Toronto Transit Commission Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: October 12, 2017 Citation: 2017 HRTO 1344 Indexed as: Marques v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Marcos Marques, Applicant No one appearing

Toronto Transit Commission, Respondent Patricia Matusiak, 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. The applicant states that the respondent refused to accommodate the applicant with modified duties when he was prescribed with narcotic medication.

2On September 12, 2017, the respondent filed a Request for Order During Proceedings. The respondent requested that the Tribunal grant an order: 1) authorizing the respondent to access, use and/or disclosure the applicant’s personal health information contained in his TTC Occupational Health and Claims Management file (“the OHCM File”) as maintained by the respondent employer, to extent this information relates to or is an issue in this Application, in order to respond to and defend the Application; 2) permitting the respondents to review and/or disclose the relevant documents in the OHCM File with individuals who are expected to testify regarding documents in the OHCM File and/or will provide instruction for purposes of responding to the Application; and 3) granting an extension of the deadline to address whether the matter should be deferred of 35 days from the date the Tribunal issues its order with respect to these Requests. The respondent submitted that its request for documentation/information in the OHCM file is limited to information related to the applicant’s absence in 2017, including any information related to his absence dated prior to 2017.

3The respondent submitted that the applicant has placed his disability and the respondent’s alleged failure to accommodate in issue. The respondent that it is entitled to review and rely upon documents regarding these issue that are contained in the OHCM File in order to make full answer and defense to the Application.

4The respondents submitted that Tribunal authorization is necessary because there may be a conflict with respect to privacy standards required by applicable legislation. The respondents indicate that the expectations and protections under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A (“PHIPA”), for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.

5The applicant did not file a response to the respondent’s request and the time for doing so has passed.

Analysis and Decision

6Before ordering production of documents, the Tribunal must be satisfied that the documents in question are “arguably relevant”, and that they are not 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. A finding that a document is arguably relevant does not necessarily mean that the document will actually be found to be relevant or admissible at a hearing. The respondent is correct in noting that the Tribunal has granted similar requests. See, for example, Johnston v. Toronto Transit Commission, 2011 HRTO 923, Power v. Toronto Transit Commission, 2011 HRTO 1462, 2011 HRTO 1462 and O’Brien v. Toronto Transit Commission, 2012 HRTO 170.

7I am satisfied that the documents contained in the OHCM File are arguably relevant and that the respondent requires access to them in order to meaningfully respond to the Application.

Order

8The Tribunal orders as follows:

a. The respondents are granted disclosure and access to the applicant’s OHCM File related to the applicant’s absence in 2017 in order to defend and respond to this Application;

b. The respondents’ advisors, instructors and potential witnesses (in relation to information contained in the applicant’s OHCM File) are the only individuals permitted to access and use the applicant’s health files as identified in (a), above; and,

c. The respondent’s request for an extension of time is granted. The respondent shall file a Response to the Application within 35 days of the date of this Interim Decision.

9I am not seized of this matter.