Joanne Kaj v. Orsini Bros. Inns Inc. o/a Doubletree Resort Lodge and Spa, 2009 HRTO 11

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Kaj

Applicant

-and-

Orsini Bros. Inns Inc. o/a Doubletree Resort Lodge and Spa, Robert Orsini, and Jennifer Hipwell

Respondents

INTERIM DECISION

Adjudicator: David Muir Date: January 6, 2009 Citation: 2009 HRTO 11 Indexed as: Kaj v. Orsini Bros. Inns

1This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). On October 20, 2008 the Tribunal scheduled mediation for December 12, 2008. On November 1, 2008 the respondents wrote to the Tribunal refusing to participate in the mediation. A case resolution conference is scheduled to take place on March 5 and 6, 2009.

2The purpose of this decision is to issue case management directions respecting several production issues raised by the parties as well as whether this Application ought to be deferred pending the outcome of a proceeding under the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “ESA”).

Deferral

3The applicant filed a claim under the ESA against the corporate respondent in respect of the events giving rise to the present Application. An investigation was conducted by an employment standards officer who concluded that the respondents had violated the emergency leave provisions of the ESA. An Order to Pay in the amount of $15,113.06 in favour of the applicant was made by the employment standards officer. The award includes damages under various heads including damages for last wages, loss of reasonable expectation of continued employment, and emotional pain and suffering. The respondents and the applicant have each commenced a review of the employment standards officer’s decision. The Tribunal has not been made aware of the status of that review before the Ontario Labour Relations Board.

4The expectation is that in most section 53(3) applications preliminary matters will not be considered prior to dealing with the merits of the Application. However, the Tribunal retains the discretion to control its process and will hear preliminary issues in appropriate circumstances. The Tribunal may defer applications where appropriate pursuant to section 45 of the Code. Rule 4.1 provides that the Tribunal may exercise any of its powers under these Rules on its own initiative. Rule 4.3(d) provides that the Tribunal may determine and direct the order in which issues in a proceeding will be considered and determined.

5As a result, the Tribunal determines that it is appropriate to receive submissions with respect to whether, in the circumstances, this Application should be deferred pursuant to section 45 of the Code pending the conclusion of the ESA proceeding.

6The Tribunal makes the following case management directions:

a. Within 20 days of the date of this decision the applicant will deliver to the respondents and file with the Tribunal her submissions with respect to whether the Application should be deferred pending the outcome of the ESA proceedings.

b. Within 20 days of receiving the applicant’s submissions the respondents shall deliver to the applicant and file with the Tribunal their submissions in response.

c. Within 10 days of receiving the respondents’ submission the applicant shall deliver to the respondent and file with the Tribunal her reply, if any.

Documents sought from the Applicant

7Although the respondents agree that some of the documents requested from the applicant have been provided since the initial requests, as of the time of this decision the respondents are still seeking documents as follows:

1. Doctor’s notes indicating required time off work corresponding to treatments received during the period from January 28 to March 29, 2008.

2. Record of earnings for time worked between March 30, 2008 and June 30, 2008.

8It is not entirely clear from the applicant’s letter of December 18, or a review of the material filed by the applicant, whether the above documents have been provided. It may be that there are no such documents in the form sought by the respondents. However if such documents do exist they should be produced to the respondents in accordance with Rule 9 as such material would appear to be arguably relevant.

Documents sought from the Director of Employment Standards

9The respondent also seeks the production of documents from the files of the investigating employment standards officer who investigated a parallel claim filed by the applicant.

10The documents sought from the employment standards file are described as follows:

1. Copy of any doctor’s notes received from Ms Kaj indicating required time off work corresponding to treatments received during the period from January 28 to March 29, 2008;

2. Copy of the report/file made to the Ministry of Labour by Ms Kaj against Orsini Bros. Inc.;

3. Copy of notes supporting conflicting statements made to Orsini Bros. Inns Inc. while reading from the case book; Ms Kaj made multiple phone calls on March 19, 2008; and,

4. Statements supporting comments made by the employment standards officer on multiple occasions advising that it was her belief that the termination was not intended to be malicious, but rather that it was the officer’s belief that the employer had wrongfully jumped the gun in firing the applicant prior to the four days passing.

11The Director of Employment Standards (the “Director”) has responded that the respondent’s requests for documents in the investigation file may be obtained through a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended, subject to any exemptions provided in the relevant legislation. The Director also submits that it will comply with any Order that is within the Tribunal’s jurisdiction to issue.

12More specifically, the Director states that as regards item 1 there are no such documents in its possession, and with respect to items 3 and 4 the requests do not disclose sufficient detail or clarity to respond to.

13The applicant states that items 1 and 3 have already been provided by her, otherwise she states that all other materials from the employment standards file are not relevant. However, as noted earlier, the applicant has indicated that she will be relying on certain materials from the employment standards file which contradicts her general position that materials from that file are not relevant to the issues in dispute in this Application.

14In terms of these requests the Tribunal cannot order the production of documents that do not exist. The Director states that there are no doctor’s notes in the investigation file and the applicant has indicated that she has already provided what does exist. Accordingly no order will be made in respect of item 1. Item 4 is on its face irrelevant and will not be the subject of an Order. Item 3 has been produced to the extent it exists, according to the applicant.

15Item 2, which I take is a request for a copy of the original employment standards claim made by the applicant, may include something of relevance to this Application given that the two matters arise out of the same factual circumstances. Accordingly this document should be produced by the Director.

Orders

16The Tribunal makes the following Orders:

a. Within 20 days of the date of this decision the applicant shall produce doctor’s notes indicating required time off work corresponding to treatments received during the period from January 28 to March 29, 2008.

b. Within 20 days of the date of this decision the applicant shall produce any record of earnings for time worked between March 30, 2008 and June 30, 2008.

c. The applicant will deliver a copy of this decision to the Director immediately.

d. Within 10 days of receipt date of this decision from the applicant the Director shall produce a true copy of the employment standards claim made by the applicant.

17I am not seized of this matter.