In Elliott v Imperial Oil Limited, 2024 AHRC 137, the Alberta Human Rights Tribunal issued an interim decision regarding a request for pre-hearing document disclosure.
This case is significant because document disclosure in human rights is not the same as it is in an ordinary civil litigation case, and there are not many cases to provide guidance on this subject.
Facts
The following were some of the pertinent facts summarized by the Alberta Human Rights Tribunal:
- The complainant filed a human rights complaint against his employer Imperial Oil Limited, alleging discrimination in employment on the basis of ancestry, race and religious beliefs
- The complaint alleged individual and systemic employment discrimination against him as an indigenous employee
- The complaint also alleged that the discrimination caused him to have a mental disability that made him unable to work for 5 or more years
- The parties had exchanged some documentation already, but Imperial Oil was requesting additional pre-hearing disclosure, including: (1) various unredacted medical records and other medical service provided related information and correspondence (2) unredacted versions of documents already produced and, (3) generally, any additional records related to correspondence between the complainant and 6 other identified people.
Analysis / Conclusion
The Alberta Human Rights Tribunal provided the following guidance on its powers to order pre-hearing document disclosure, and the circumstances it considers:
[5] […] the “Tribunal may order a party to produce records when it is in the interests of justice to do so”. This is a discretionary power to ensure the interests of justice and a fair and efficient hearing process.
[6] Section 27(4) of the Act gives the Tribunal the powers of a commissioner under the Public Inquiries Act. Similarly, section 20.4 of the Alberta Human Rights Commission Bylaws (the Bylaws) particularizes that the Tribunal may:
(h) direct the dates for providing documents;
(i) require a party or person to provide a report, statement, oral or affidavit evidence;
(j) make an examination of records or make other inquiries;
(p) direct a party to adduce evidence or produce a witness where such evidence or witness is reasonably within the party’s control; and
(w) take any other action that the Tribunal determines is appropriate.
[7] In Melnyk v RBC Dominion Securities Inc., the Tribunal summarized a non-exhaustive list of principles related to production orders, including that the requested information must:
- be arguably relevant because it has a rational probative connection to the issues before the Tribunal;
- be particularized and not overly broad;
- not be a “fishing expedition”;
- not cause undue prejudice to the other parties or to third parties; and
- be in the interests of justice.
[8] The Tribunal is not bound by the strict rules of evidence. However, it is still concerned with both fairness and privacy.
Regarding requests for further medical information / unredacted medical information, the AHRT provided the following guidance about relevance and privacy considerations:
[17] In principle, the party requesting the personal health information of someone else is only entitled to get that information which is arguably relevant to the proceedings. This Complaint is complex, and that complexity extends to the requested remedy. The complainant has made serious accusations against the respondent and attributes significant impacts on his ability to work to the respondent, including substantial damages for mental distress and lost income for many years, with no prognosis for a return to work.
[18] The respondent is entitled to test and challenge the complainant’s assertions. It requires medical records that relate to the complainant’s health and how that affects his ability to return to work, including on how other conditions, medications or circumstances affected the complainant’s ability to work. For example, the respondent is aware of personal relationships potentially impacting the complainant’s ability to work and additional intervening or contributing events. [underline added]
[…]
[21] I am cognizant of the complainant’s privacy interests considering his sensitive physical disability and his general privacy interests but note that fairness overrides those concerns here.
[…]
[28] The complainant has put his health in issue and fairness requires the respondent have the full medical record to know the case to be met and to address capacity to work from all medical conditions, not just the conditions the complainant attributes to the respondent. The challenge here is that the complainant’s health is in issue, and it is difficult to clearly parse out which conditions impacted his ability to work. The respondent is entitled to test the medical information and needs to know the case to be met. That will not always be the case in every complaint, but it is here where the medical information is complex and interconnected.
The Tribunal ordered the complainant to produce a list of the other medical practitioners he had seen since 2017, and ordered him to provide the respondent with unredacted copies of their charts, with only reasonable redactions for identifying information like personal health numbers. The Tribunal noted that this was broader than it would normally order, but there were significant damages claimed over a lengthy period, complex medical conditions, and the question of the capacity of the complainant to work, which required broad disclosure.
Regarding the request to produce unredacted versions of prior production, the complainant argued that he had only redacted things out that were irrelevant. The Tribunal disagreed in the circumstances and ordered everything produced, as follows:
[44] […] The respondent needs the full record to see the context and determine for itself if any of the redacted portions are relevant. Redactions at the disclosure stage cause confusion and make it difficult to interpret the information unless there is a clear and cogent reason for its redaction, like privilege. While there may be cases where redactions may be appropriate in prehearing disclosure, the circumstances of this Complaint support that the arguably relevant records should be produced in full.
And for the more general request of “additional correspondence”, the ARHT noted that this was not a specific enough request, and so it was not clear what precisely was being requested and what its probative value was. The request for this information was denied, although the Tribunal noted that as more individual witnesses were named, some of the information could become arguably relevant in the future.
My Take
I want to point out first that the way disclosure of documentation is done in Alberta human rights is quite different than in a civil court, and in my opinion, not in a good way. In a civil court, parties are required to produce the relevant and material documentation automatically, before any decisions are made. In human rights, the commission carries out a screening function to remove weaker complaints before fulsome document disclosure generally takes place. Typically document disclosure in human rights takes place once a matter is assigned to a tribunal for a hearing.
In any event, the case I am summarizing involves document disclosure for a matter that is set to go forward to a hearing in front of the Tribunal.
The amount of medical information ordered to be produced in this case is extremely broad. The rationale makes it clear that the reason for such broad disclosure is the complexity of the medical issues and the claim that he was unable to work.
However, the complainant had legal counsel. Courts and tribunals often rely on legal counsel to vet the documentation and only produce what is relevant. Given that he had legal counsel, I am somewhat surprised at how broad these production orders were. Still, this case should serve as a reminder to complainants – if your medical claims are complex and you are seeking substantial damages over a long period, most or all of your medical history may be relevant and have to be produced to your former employer’s lawyers.
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