The recent Tribunal decision of Iley v. Sault Community Information and Career Centre provides a good review of the principles that will be applied when ordering production of documents at the Tribunal and, more specifically, when dealing with production medical information by the applicant.
The Tribunal, in an earlier decision, ordered the applicant to produce certain medical records including all clinical records, notes and reports from one of the applicant’s treating neurologists. The applicant did so, but redacted some information. Furthermore, according to the Tribunal "none of the documents were organized by index and it was difficult to determine the author." The employer/respondent argued that it would be highly prejudicial to force it to proceed to a hearing without knowing the contents of the redacted documents.
The Tribunal laid down the following principles:
- The Tribunal is not bound by any particular rule that mandates the production of medical records. However, the test for production of medical records is the same as for other types of documents. That is, they must be of arguable relevance, as long as there is no fishing expedition into the applicant’s medical history. The Tribunal can order disclosure of medical records to itself, then may review the documents and, if arguably relevant, can order them disclosed.
- Privilege with respect to medical records is decided on a case by case basis, balancing the general duty to produce all relevant documents and the invasion of the applicant’s privacy. If the medical records are arguably relevant, the Tribunal will order the applicant to provide the medical records for inspection by the Tribunal at the hearing in order to assess their relevance to the proceedings.
- Where the existence or severity of a disability is itself very much in issue, the Tribunal must engage in a balancing exercise. In such cases, the Tribunal must balance the general duty to require production of all arguably relevant material in disability cases so that respondents have sufficient opportunity to advance their case, versus the invasion of the applicant’s privacy vis-à-vis his confidential conversations and private records with his physicians.
[Emphasis added]
To similar effect on point #3 is McEwan v. Commercial Bakeries Corporation the Tribunal held that:
As a matter of natural justice and fairness, the Tribunal must balance the general duty to require production of all relevant material in disability cases, where the disability itself is in dispute, so that Respondents have sufficient opportunity to advance their case, versus the invasion of the Complainant’s privacy vis-à-vis his confidential conversations and private records with his physicians and psychological counsellors. [Emphasis added]
In McEwan, the Tribunal found that the medical records more than met the test of arguable relevance and ordered the Complainant to "contact all of his treating physicians and psychological counsellors and provide them with a signed release, so that he can allow the Tribunal to inspect certain medical documents" at which time the Tribunal would "determine if they are of actual relevance to the proceedings herein and will make a further Order if required with respect to their production".
With respect to the medical records, the Tribunal in Iley v. Sault Community Information and Career Centre ordered as follows:
The applicant will produce unredacted documents to the respondents. Shall he wish to withhold medical documents based on a concern for his privacy, he may raise that issue by way of a Request For Order During Proceedings at the outset of the hearing when it re-commences. A determination as to relevance in accordance with the test and considerations outlined above shall be made, and the applicant further directed as to medical documents relevant for production should the question of privacy be raised. [Emphasis added]
The only question I would have is whether it was possible to fashion an order that would have allowed the production issues to be dealt with prior to the re-scheduled hearing date as was done in McEwan.
The Tribunal, in the First Interim decision in McEwan, Ordered as follows:
- The Complainant must execute and deliver releases to all his treating physicians and psychological counsellors within ten business days from the date of this decision, for production to the Tribunal of all of their clinical notes and records, reports already created, charts, diagnostic test results, psychological or other counselling reports, counselling notes and counselling records, emergency records, records of prescriptions, and diagnostic results including x-rays;
- The Respondents must reimburse the Complainant for the costs of such production to the Tribunal, since it is being done at their request; and
- The Tribunal shall inspect such documents and determine their relevance to this matter, if any. If required, a subsequent Interim Decision shall order production of particular documents. [Emphasis added]
In a subsequent Interim decision dealing with production, the Tribunal held:
The Tribunal has reviewed both sets of documents, in order to determine if they met the test of arguable relevance to the proceedings herein, and to ensure that the Complainant’s privacy is not invaded unduly.
The Tribunal has determined that the documents are relevant to this matter, that the Complainant’s privacy will not be unduly breached, and that the documents ought to be produced to all parties in their entirety.
Copies were made and ordered produced to the parties.
Would it have been possible to fashion a similar "pre-hearing" type order in Iley? Maybe the circumstances were such that the answer is "no". But McEwan does provide some support for "pre-hearing" production where medical information is in issue. If the production issues are dealt with at the hearing, there's a reasonable chance that an adjournment will be requested to permit the party receiving production to review the documents, seek counsel (especially with medical documents) and determine how, if at all, they impact on the case.
