At the Human Rights Tribunal of Ontario, it is not unusual for medical documents to be entered as evidence, but according to the interim decision of Ivanescu v. Credit Valley Hospital, these medical documents may not be sufficient without the testimony of the physician.
The Applicant, an employee returning to work after an illness, filed an Application at the Human Rights Tribunal of Ontario alleging discrimination based on disability when her request for accommodation to not work nights was denied by her employer. The purpose of the interim decision was to determine whether or not the physician’s testimony was required in addition to the physician’s notes and reports.
The respondent argued that they should have an opportunity to cross-examine the physician based on the contents of the medical documents, and that without this opportunity, the documents ought not to be admitted into evidence for the truth of their contents. Further, the respondents argued that the cross-examination of the doctor may also be prejudicial without the added opportunity to observe the doctor’s body language and other visual clues. The Tribunal stated that natural justice required that the respondent be given the opportunity to test the reliability and veracity of the applicant’s medical evidence on a central issue of the case through the process of cross-examination.[i]
After reviewing the arguments in their totality, the Tribunal agreed with the respondent’s position and the physician was required to testify, and if not, the corresponding notes and reports would not be admissible into evidence.
The above notwithstanding, the Tribunal denied the respondent’s second further request that the doctor be made to testify in person, and instead allowed the doctor to testify by phone, as per the Tribunal Rules that stipulate that the Tribunal may “conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate.”[ii]
Although a doctor’s report or note may be sufficient in a day-to-day context, any reliance on these documents as evidence at the Tribunal would best be supported by the physician’s testimony.
Interestingly enough, this decision appears to underscore the fiduciary nature of the physician who, in spite of their often-busy practice, may still be required to testify in relation to any notes or reports they have produced in relation to their patient’s care.
[i] Ivanescu v. Credit Valley Hospital2012 HRTO 1211 (CanLII) para. 13
[ii] Ibid., para. 17