HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael George
Applicant
-and-
Presstran Industries
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: George v. Presstran Industries
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges he was disciplined in August 2015 and terminated in November 2015. He further alleges the respondent was aware of his mental health issues as early as 2010 (the applicant indicated the reference in the Application to 2009 should have been to 2010) and that his supervisor knew of mental health-related alcohol abuse as early as December 2014.
2After the parties disclosed to each other their arguably relevant documents but before they disclosed their documents to be relied on at the hearing, the respondent filed a Form 10 Request for an Order During Proceedings dated October 6, 2017 and the applicant filed a Form 11 Response to a Request for an Order During Proceedings on October 20, 2017. The respondent requests production of the following documents:
- All medical records from all healthcare professionals and facilities, including all psychiatric assessments and clinical notes from January 2008 forward including;
a. Documents in the possession, control or power of Dr. Bush, Dr. Spence, Sally Cousins, David Kim, Sheena Ghodasara and any and all other treating healthcare practitioners; Family Services Thames Valley program for Male Survivors; Addiction Services of Thames Valley; the St. Thomas Elgin General Hospital; the London Health Sciences Centre; Daya Counselling Centre and Homewood Health;
b. Documents in the applicant’s confidential company medical file;
c. Documents in the applicant’s short term absence benefits file with SunLife Assurance Company of Canada in respect of his absences from work in 2008 and 2010.
Unredacted copies of the medical documents at Tab 4 of the applicant’s Book of Arguably Relevant Documents;
Income tax returns, T4’s and Notices of Assessment for 2015 and 2016;
Documents relating to the applicant’s mitigation efforts including his search for alternate employment and any personal business activities he has engaged in since his termination.
3The respondent submits the applicant has made his mental health and capacity and the allegation that the respondent failed to accommodate his alleged mental health disability the central issues in the Application. Further the applicant asserts that as early as 2009 he suffered acute anxiety, panic attacks, memory loss, dissociative amnesia and physical shaking because of his disability. The respondent submits the disclosed documents show he has attended or may have attended Family Services Thames Valley program for Male Survivors, Addiction Services of Thames Valley, the St. Thomas Elgin General Hospital, the London Health Sciences Centre, Daya Counselling Centre and Homewood Health.
4The respondent argues the applicant has not disclosed all his relevant medical documents, particularly any from prior to September 2014. The respondent argues it is entitled to review all arguably relevant documents, to fully test the case against it and test the reliability and veracity of the applicant’s evidence.
5The respondent submits that the Tribunal generally will order disclosure of all arguably relevant documents that are not privileged or that raise privacy concerns, and that the Tribunal regularly orders the applicant to produce clinical notes and other medical documents.
6The applicant for his part takes the position that:
a. all medical records pre-2010 and between 2011 and 2014 are not relevant;
b. he has disclosed all medical records from Ms. Cousins, Dr. Kim, Dr. Ghodasara, Daya Counselling, and Homewood Health, none of which the applicant saw until 2015 or later;
c. he has provided all his medical records from September 2014 to December 2015, including all clinical notes, from Dr. Spence, London Health Sciences Centre and St Thomas Elgin General Hospital;
d. the only SunLife and company file documents that should be disclosed are those from 2010 and 2015;
e. the clinical notes from Addiction Services should not be disclosed because they would be prejudicial to the applicant’s health and well-being; they are from sessions that occurred after the applicant’s termination, that are extremely private, and that often took place in a group setting; and he has provided a note from Addiction Services of Thames Valley that include all the appointments that he attended and his treatment plan;
f. the clinical notes from the applicant’s sessions with Dr. Bush, the former respondent doctor, should not be disclosed because they would contain very personal information from therapeutic sessions and would offer no further diagnostic proof of the applicant’s condition, and the respondent has not explained how they would be arguably relevant - the arguably relevant notes are those that confirm that the applicant was diagnosed with anxiety and depression and was on sick leave in 2010 as a result;
g. he has already provided unredacted copies of the requested notes, and that the redactions were fax page numbers;
h. he has provided his 2015 and 2016 tax returns and mitigation documents.
7In summary, the applicant submits the only disputed documents are the following:
a. notes from the individual and group sessions which he attended at Addiction Services Thames Valley;
b. notes from the individual sessions he attended with Dr. Bush in 2010; and
c. his entire medical history, notes and records between 2008-2014, including those in the confidential company medical file between 2008-2009 and 2011-2014.
8The applicant submits the respondent has the burden of demonstrating that the documents sought are arguably relevant to the issues raised. The respondent must show a nexus between the issues raised and the document sought, and can establish the nexus if the information in the document requested goes “to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence.” The applicant further submits that if a nexus is established, the Tribunal can then consider privacy or privilege.
9The applicant submits the central issue is his mental health disability in 2015 when the respondent terminated him. He submits he has disclosed all medical documents leading up to his termination, and that all documents after his termination have also been disclosed, except the individual and group session notes from his treatment at Addiction Services Thames Valley.
10The applicant concedes that what the respondent knew in 2010 is relevant because he alleges the respondent knew of his mental health issues at that time and therefore should have known about them in 2015. He submits it should be sufficient that he has disclosed from the respondent’s file the notes that were sent to the respondent in 2010 as well as the notes from the respondent’s in-house doctor, Dr. Bush, at that time.
11The applicant takes the position that the respondent has provided no reasons for its assertion that the requested documents are arguably relevant other than its general statement about reliability and credibility, nor has it established a direct nexus between the issues and the requested documents.
12Specifically, the applicant submits the respondent has not explained how the applicant’s medical records from 2008 and 2009 and from 2011 to 2014 are relevant, nor why all his 2010 medical records are arguably relevant given he does not allege any human rights violation in 2010, but asserts only that the respondent knew about his mental health issues because he was off work for them in 2010. He submits he has disclosed the health records that are relevant to this issue.
13The applicant further argues that if the probative value of documents is outweighed by the potential prejudice to the party from whom the documents are requested then the Tribunal may not order disclosure even if the documents are arguably relevant.
Legal Principles Relating to Production Requests
14As indicated the test for document production is whether the documents sought are “arguably relevant” to the issues in dispute in the proceeding. At 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 (“McKay”). The requesting party bears the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after materials and the subject-matter of the Application. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay, above, at para. 13.
15In Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, the Tribunal noted that:
[d]ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.
16In addition, the Supreme Court of Canada’s decision in A.M. v. Ryan, 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157 (“A.M.”), addressed the issue of privilege. The Supreme Court of Canada in A.M. held that records may be protected by common law privilege where four conditions are met: one, the communication must originate in a confidence; two, the confidence must be essential to the relationship in which the communication arises; three, the relationship must be one which should be “sedulously fostered” in the public good; and four, the interests served by protecting the communications from disclosure outweigh the interests in getting at the truth and disposing correctly of the litigation. The court held the first three conditions were met with psychiatric records between a psychiatrist and a sexual assault complainant.
17The Tribunal also has addressed the issue of the disclosure of psychiatric records. See, e.g. Redman v. Sunnybrook School Limited, 2013 HRTO 1566 (“Redman”) at paras. 8 and 9. The Tribunal held that the first three conditions set out in A.M. are also met with psychiatric records between a psychiatrist and a human rights complainant. The communications are confidential, their confidence is essential to the psychiatrist/patient relationship and the relationship itself and the treatment it makes possible are of public importance. It further held that the issue is the balancing between protecting the applicant’s privacy interests and the respondent’s interests at getting at the truth in the hearing process.
18The Tribunal also stated in Redman that:
The balancing of competing interests is not an all-or-nothing exercise. It may well be that disclosure of a limited number of documents with the non-essential material edited out may ensure the highest degree of confidentiality and the least damage to the protected psychiatrist-patient relationship, while guarding against the injustice of non-disclosure
Analysis and Decision
19First, the onus is on the requesting party to show arguable relevance, and the respondent’s argument that it should be permitted to review all arguably relevant documents and to fully test the case against it as well as test the reliability and veracity of the applicant’s evidence does not meet the test.
20I agree with the respondent that the applicant has made his mental health disability and the respondent’s alleged failure to accommodate him the central issues in the Application. The Application is unclear with respect to what the applicant alleges the respondent knew prior to terminating him in 2015. He alleges at paragraph 9 that he had a “breakdown” in 2009 [which he has since stated was actually in 2010] and no further incidents until the spring of 2015. However, he also states at paragraph 24 that the respondent was aware of some issues again in December of 2014. It is not in dispute that he alleges the respondent terminated him in 2015, and did so despite knowing about his mental health disability prior to that time.
21The issues in this case are the applicant’s discipline and termination in 2015 and what the respondent may have known of the applicant’s mental health prior to that. As such, it is relevant to the allegations in the Application what the respondent knew in 2010 and from December 2014 to the time of termination. In my view, the respondent has not established that all of the applicant’s medical records from 2010 and 2014 are arguably relevant to the issues. What is arguably relevant in my view is what medical information, including those from the SunLife file, that the applicant alleges the respondent had in its possession in 2010 and from December 2014 to the time of termination related to the applicant’s mental health disability. The applicant should disclose those documents to the respondent if he has not done so already.
22The respondent also has not established that all the applicant’s medical records from 2008 forward are arguably relevant. While the applicant may have suffered from the symptoms he sets out as early as 2009, the issue is the applicant’s mental health in 2015 when he was terminated, as well as his assertions that his symptoms in 2015 included acute anxiety, panic attacks, memory loss, dissociative amnesia, and physical shaking.
23The applicant shall disclose to the respondent the medical documentation relevant to these symptoms from December 2014 to the time of termination. The applicant is not required to disclose notes from the individual and group sessions that he attended at Addiction Services Thames Valley or notes from individual sessions he attended with Dr. Bush in 2010. In my view, given the nature of these notes that resulted from private counselling sessions, the prejudice to the applicant would outweigh the relevance of those notes to the respondent.
Order
24The applicant shall deliver to the respondent by no later than November 14, 2017 the following:
a. medical information, including documents from the SunLife file, that the applicant alleges the respondent had in its possession in 2010 and from December 2014 to the time of termination related to the applicant’s mental health disability that he has not yet disclosed; and
b. medical documentation relevant to the applicant’s alleged symptoms from December 2014 to the time of termination, excluding notes from the individual and group sessions that he attended at Addiction Services Thames Valley or notes from individual sessions he attended with Dr. Bush in 2010.
Dated at Toronto, this 8th day of November, 2017.
“Signed by”
Dawn J. Kershaw
Vice-chair