The Ontario Human Rights Tribunal will order pre-hearing production of arguable relevant medical documents where it receives a Request for Order During Proceeding and the documents are arguably relevant unless the documents are privileged or raise privacy concerns. This approach was recently confirmed in Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge 2016 HRTO 371 (CanLII). The Tribunal also held that reply submissions will not be considered in Request for Order During Proceedings.
In considering the threshold for production the Tribunal stated:
“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 (CanLII) and Baldeo v. Securitas Canada Ltd, 2015 HRTO 1395.
In the earlier case of Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 (CanLII) at para. 8, the Tribunal stated:
The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.
In Bosnitch the Tribunal noted:
An applicant who alleges discrimination or harassment on the basis of disability in an application before the Tribunal, and seeks remedies including remedies for a worsening in the condition, may have to disclose more medical documentation than he or she did in their employment. These situations can be different from that addressed in the Commission’s policy. Furthermore, an applicant who alleges discrimination on the basis of disability must prove that he or she has a disability as defined by the Code. This may require production of medical documentation that has not previously been produced to an employer.
The cases support an early request for production and, as in Bouchard even a late request will be granted where the "arguable relevance" test is met.