Ontario Labour Relations Board
[1996] OLRB Rep. May/June 454
4366-94-OH Ruth Kidane, Applicant v. Immigrant Women's Health Centre, Responding Party
BEFORE: M. A. Nairn, Vice-Chair, and Board Members R. M. Sloatt and C. McDonald.
APPEARANCES: Linda Vannucci-Santini for the applicant; T Hawtin for the responding party.
DECISION OF THE BOARD; May 6, 1996
1The hearing of this matter is ongoing. The responding party seeks to introduce certain medical records of the applicant. The applicant opposes their introduction. We received the parties' submissions and have reviewed them. We note that the responding party is fully prepared to maintain the confidentiality of any records it seeks to rely on in this proceeding.
2At the outset of these proceedings the applicant sought to rely on three medical reports from physicians attending to the applicant. The responding party put the applicant on notice that it was objecting to the reports being received into evidence in the absence of viva voce testimony from the physicians involved. Those reports are quite summary in nature. The records that the responding party now seeks to rely on have been subpoenaed from those physicians' files and provide greater detail both as to the described difficulties of the applicant and to the amount and type of treatment involved.
3In her submissions, the applicant takes the position that these records are irrelevant. We have difficulty accepting this proposition given that the applicant seeks to rely on medical evidence in support of her case. We note that should the applicant now be of the view that no medical evidence of any kind is relevant and seek not to rely on such, the issue of whether the responding party may rely on these records may become academic.
4However in light of the applicant's current intention to rely on medical evidence the records sought to be relied on by the responding party are, in our view, relevant.
5The responding party has articulated the real issue underlying this dispute, that is, who bears the onus of calling the physicians. In our view that onus rests with the applicant. She seeks to introduce and rely on documentary medical evidence that the responding party has challenged. The responding party seeks to rely on more complete medical documentation only by way of response. The Board is governed by its own rules and has the authority to admit hearsay evidence, subject always to the weight that ought to attach to such evidence. In this case, given the nature of the issues in dispute, the applicant's reports would be of limited value to the panel. Certainly, should the applicant choose not to call the physicians, yet seek to rely on the medical reports, the responding party is entitled the opportunity to rely on further medical reports in like manner. Should the applicant choose to call the physicians and we hear their viva voce evidence, all of the medical reports, whether sought to be relied on by the applicant or the responding party, are relevant only as they inform that viva voce evidence, and bear little, if any weight, independently of the viva voce testimony. The responding party is entitled to use the documentation for purposes of cross-examination. It should be aware however, that if the applicant chooses not to call the physicians and the responding party seeks to assert a prior inconsistent statement by the applicant, it will be incumbent upon the responding party to call the maker of the report in reply.
6The responding party seeks to identify these records as ones it intends to rely on. Whether or not these records, or the records that the applicant seeks to rely on, will be admitted in evidence in this proceeding has yet to be determined in accordance with these comments.