BOARD OF INQUIRY (Human Rights Code) IN THE MATTER OF the Ontario Human Rights Code, 1981, S.O. 1981, c.53, as amended; AND IN THE MATTER OF the complaint by Juanita Crook dated March 31, 1991, alleging discrimination in employment on the basis of sex. BETWEEN: Juanita Crook Complainant and - Ontario Cancer Treatment and Research Foundation and the Ottawa Regional Cancer Centre Respondents INTERIM DECISION Adjudicator Professor T. Brettel Dawson : Date October 23, 1995 : Board File No: 93-0070 Decision No 95-045-1 : Board of Inquiry (Human Rights Code) 150 Eglinton Avenue East 5th Floor, Toronto ON M4P 1E8 Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946 O: Bf.93 0070-93 COVER.DEC IN THE MATTER OF a Board of Inquiry appointed pursuant to s. 38(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended BETWEEN CROOK Dr. Juanita Complainant AND ONTARIO CANCER TREATMENT AND RESEARCH FOUNDATION and the OTTAWA REGIONAL CANCER CENTRE Respondents INTERIM DECISION Date of Complaint: March 13, 1991 BOI File No.: 93-0070 Conference Call: June 15, 1995 Commencement of Hearing in Person June 26, 1995 Board of Inquiry: Professor T. Brertel Dawson Appearances (Conference Call) For the Commission: Ms. Geri Sanson, Counsel For the Complainant: Ms. Karen Clifford, Counsel Nelligan and Power For the Respondents: Mr. Michael Kennedy, Counsel Mr. Robert Little, Counsel Hicks Morely Hamilton Stewart Storie Digitized by the Internet Archive 2014 in £ https://archive.org/details/boi95_045_l Introduction By letter of appointment dated May 05, 1994 {Exhibit 1), I was appointed as a Board of Inquiry to hear and decide a complaint made by Dr. Juanita Crook (the Complainant) dated March 13, 1991, against the Ontario Cancer Treatment and Research Foundation (OCTRF) and the Ottawa Regional Cancer Centre (ORCC) (the Respondents) alleging discrimination on the basis of sex by reason of denial of sick leave benefits during a period of pregnancy-related leave (Exhibit 2). The hearing commenced by way of conference call on May 31, 1994 and dates for the commencement of the hearing in person were set for June 26-30, 1995. A case conference was held on March 13, 1995 (the report of which has been filed by agreement of the parties as Exhibit 8). Notice of a constitutional question with respect to section 25(2) of the Human Rights Code, R.S.O. 1990, c. H.19 (the Code) was given by the Ontario Human Rights Commission (the Commission) to the Attorney Generals of Ontario and Canada on May 15, 1995. In the period leading up to the substantive hearing, it became apparent that a number of preliminary issues could not be agreed between counsel and would require my determination. Written submissions and authorities were filed and a further conference call was convened on June 15, 1995 to permit me to hear oral argument. On June 19, 1995, I released my decisions on the preliminary matters raised. These are my written reasons. In broad outline, the factual context accepted for the purposes of preliminary motions (but subject to proof in the normal fashion at the hearing) indicates that Dr. Crook is a Radiation Oncologist with the OCTRF working out of ORCC in Ottawa. She gave birth on April 10, 1990 and was on leave from her employment between the period of her delivery to the end of June 1990. In her complaint, she alleges that she indicated to her supervisor that she planned to use vacation credits and take sick leave following the birth of her child. However, in the event, she did not receive any paid sick leave. Documentation was obtained from two medical practitioners: her own physician, Dr. Cormier who provided a medical certificate dated May 07, recommending absence from work until July 01 for "medical reasons" and a letter dated June 07, stating the medical reasons (specific illness) for the recommendation for time off work. At the request and nomination of the Respondents, Dr. Crook obtained a second opinion on June 29, just prior to her return to work, from Dr. Boudreau, an M.D. and psychiatrist. Her consequent letter ofJuly 06, 1990 indicated that Dr. Crook had "legitimate grounds for the medical leave." The Preliminary Matters Stated and Determinations Summarized In the course of correspondence and argument in the June 15 conference call, a number of preliminary matters were raised. These included the mode of appropriate service of documents on the Complainant by the Respondents (a matter agreed to be pursued between counsel and the Complainant after the conference call), the propriety ofprovision of a Book of Documents to me prior to the conference call, and the admissibility of five documents in that Book. The heart of the preliminary questions, though, was a motion by the Respondents that the Board order the Commission to call as witnesses, the two physicians who authored medical reports concerning the Complainant. The Commission proposed to file the reports only without calling the physicians. An underlying purpose of the Respondents' motion was to have the physicians available for cross-examination on their medical evidence. The matter of cross-examination was further pursued upon the commencement of the hearing in person and I include reasons for decision upon that matter as well. The Respondents also sought disclosure by the Commission of the complete medical files concerning the Complainant held by the physicians. At the commencement of the hearing in person, the question of disclosure of the medical file of one of the physicians, Dr. Boudreau, was again raised. The Commission countered in part, requesting that the Respondents' motions be considered an abuse of the process of the Board. The Commission also sought disclosure of the Respondents' case, including its position, the witnesses it intended to call and evidence and documents planned to be introduced, including material related to a potential argument under section 1 of the Canadian Charter ofRights and Freedoms (the Charter). The Commission raised, but deferred, the possibility of adding a further ground of Complaint. My decisions on each of these motions were as follows and were released to the parties on June 19, 1995. I ruled that the provision of the Book of Documents was not inappropriate and that the five documents placed in question during the conference call were admissible. I denied the Respondents' motion that the Commission call the physicians and their motion for complete disclosure of their medical files on the Complainant. I denied the Commissions' motion that the matters raised by the Respondents constituted an abuse of the Board's process and denied the Commission's motion for disclosure of the Respondents' case, although urging further discussion between counsel to permit orderly preparation and to avoid the potential for further delay. On matters raised at the commencement of the hearing in person, I held, first, that if the Respondents called Dr. Boudreau, they would be permitted to cross-examine her, and, second,' that upon testifying, she should make available her clinical notes related to her June 29, 1990 examination of the Complainant. It is noteworthy that Dr. Boudreau was the Respondents' nominated medical examiner. Reasons for Decision The Book of Documents The Respondents argued that the Book of Documents for the Commission had been inappropriately provided to me by the Commission and requested an Order requiring its collection from me. There was some dispute as to whether a specific indication of Commission counsel's intention to provide the documents had been given but this matter is not determinative. Commission counsel emphasized that the Book of Documents contained "Respondents documents" which she did not anticipate would be in question, and that the Respondents would have an opportunity to speak to the admission into evidence of the documents. She submitted that the documents were necessary to provide an evidentiary context or foundation for the determination of the preliminary matters, and that the Statutory Powers Procedure Act, R.S.O. 1990, c. 22, as amended (the S.P.P.A.) permitted a broad approach to the admission of oral and documentary material. She also argued that Re City ofToronto and CUPE, Local 79 (1982), 35 O.R. (2d) 545, has established, for the purposes of making decisions on admissibility of reports, that a Board (in — that case an arbitration board) "must give careful consideration to [documents in question in that case, a Report] which necessarily implies that [a] Board could peruse the report to the extent necessary for reaching its decision. " The Court of Appeal concluded that this was "clearly the correct method to be followed by the Board in considering admissibility" (at p. 557). As such, in Commission counsel's submission, the Respondent's general objection lacked substance. I conclude that the provision of the Book of Documents to me by the Commission in advance of the conference call was appropriate in the circumstances to permit the documents on which counsel proposed to rely to be before me in the hearing. Of importance are the breadth of potential admissibility and perusal of documents, together with the proximity of a hearing. In my June 19 ruling, I emphasized that prior to receipt into evidence or cognizance by me, documents would be subject to arguments concerning admissibility and weight; and, indeed, I heard arguments on the admissibility of the various particular documents as they were referred to and relied upon in submissions. I also assured Respondents' counsel that I did not intend generally to review documents prior to their introduction or consideration in the hearings. Admission of Documents The admissibility of five documents was raised before me. The documents in question were three medical certificates/letters and two documents authored by the Manager of Compensation and Benefits. Counsel for the Respondents did not object to the admission of the medical certificates. These certificates were marked as exhibits: {Exhibit 3: Medical Certificate for Juanita Crook, dated May 07, 1990 signed by Dr. Cormier; Exhibit 4: Letter of Dr. Cormier to Dr. Evans re Juanita Crook dated June 07, 1990; Exhibit 5: Letter of Dr. Boudreau to Dr. Evans re Dr. Juanita Crook dated July 06, 1990.) With respect to the remaining two documents in issue, authored by the Manager of Compensation " and Benefits, much concern was expressed by counsel for the Respondents that the admission of these documents, at this time, might result in me "prejudging" issues which should be the subject of evidence and submission in the hearing. He submitted that the correct interpretation of the documents was subject to argument or clarification and that they would be better brought in through the witness. In one of these documents (Exhibit 7, infra). Ms. Brundrit indicates that she had said to Dr. Crook that she was "not disputing the legitimacy of her illness but [was saying] that it [the illness] occurred when she was on leave of absence and did not qualify for payment. This statement might well suggest that the Respondents had not raised the issue of Dr. Crook's medical condition earlier and even, that they had conceded the legitimacy of her stated illness. To this extent, they related to the Commission's argument that the Respondents could not now seek to place in question the Complainant's medical condition as a central issue for determination, and one which required oral testimony from the physicians. These two documents were respondent-originated, appeared necessary to permit an evidentiary context to be laid for the argument on the preliminary matters, and would be subject to normal considerations as to weight and contestation by other evidence in the hearing. As such, I concluded that they should be admitted. These documents were marked as exhibits {ExJiibit 6: Letter from Patricia Brunarit, Manager of Compensation and Benefits, Human Resources Department, to Dr. Juanita Crook dated August 16, 1990); Exhibit 7: Notes from Telephone Conversation with Dr. Crook on October 18, 1990 signed by Patricia Brundrit on October 18, 1990) Attendance of the Two Physicians Who Issued the Medical Certificates : By motion, the Respondents requested that the Commission be required by the Board to call as witnesses, the two physicians who prepared the medical certificates/letters. Implicit in this motion, were that the Commission be responsible for arranging the physicians' attendance, and that, as Commission witnesses, they be subject to cross-examination by the Respondents. The Respondents sought to test the medical evidence in this way because, in their submission, they "dispute the assertion that the Complainant was unable to work due to an illness. Accordingly, the Complainant's medical condition will be a central issue." The Board was informed that, prior to the conference call, the Respondents, out of caution in light of rapidly approaching hearing dates, had served a summons on Dr. Boudreau and had attempted to serve a summons on Dr. Cormier. The Board was further informed that Dr. Boudreau had a prior committment to be at a medical conference in British Columbia during the dates of the hearing, that her consultation with the Complainant was a single consultation conducted with the Complainant at the request of the Respondents, and that she had essentially no recollection of it beyond what had been included in the copy of her report. The Board was also informed that Dr. Cormier now resides in the U.S. but had indicated that he would be available by conference call should the Board determine that his viva voce evidence was required. I suggested in my June 19 decision, that Dr. Cormier, being out of thejurisdiction, would not seem to be compellable by the Board. The point was accepted by the Respondents (at the commencement of the hearing in person) and Dr. Cormier's attendance was not farther pursued. My reasons, then, apply primarily to the situation of Dr. Boudreau. Much argument was urged upon me and much ink could be spilled on the matter of the physician's attendance. Interesting legislative history andjurisprudence was raised in relation to the development in civil proceedings of provision for written (and hence hearsay) medical reports to be tendered in lieu of oral evidence and personal attendance by physicians. Cases submitted and considered by me (e.g., Kapulica v. Dumancic, [1968] 2 O.R. 438; Briand v. Sutton (1986), 57 O.R. (2d) 629; Ferraro v. Lee (1974) 2 O.R. (2d) 417; Harris v. WindsorAirLine Limousine (1985), 6 C.P.C. (2d) 156, explored the delicate balancing of risk and onus, type ofproceeding and legal issue, and questions of election and presentation of evidence. They also explored that factors relevant to the exercise ofjudicial discretion in this regard, all in relation to section 52 of the Evidence Act, R.S.O. 1990, which provides that (1) Any medical report obtained by or prepared for a party to an action and signed by a legally qualified medical practitioner licensed to practice in any part of Canada is, with the leave of the court and after at least seven days notice has been given to all other parties, admissible in evidence in the action.