Alison Kay v. Ford Motor Company of Canada, Limited and Paul Roy, 2009 HRTO 1359

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alison Kay

Applicant

-and-

Ford Motor Company of Canada, Limited and Paul Roy

Respondents

INTERIM DECISION

Adjudicator: Judith Hinchman

Date: August 31, 2009

Citation: 2009 HRTO 1359

Indexed as: Kay v. Ford Motor

1This is an Application filed under s. 53(3) of the Human Rights Code, R.S.O. 1990, c.H-19, as amended (the “Code”). The complaint which underlies the current Application was filed with the Ontario Human Rights Commission on July 25, 2007 and abandoned upon the filing of the present Application with the Tribunal. The Application alleges discrimination in employment based on disability and also that the applicant’s employment was terminated because of disability. A Case Resolution Conference (the “hearing”) is scheduled for September 29 and 30, 2009.

2On June 8, 2009, the applicant requested that the respondents produce multiple documents that she described and listed in 96 paragraphs (“production request paragraphs”). The applicant is satisfied that the documents listed in her production request paragraphs 1, 44, 52, 60, 73, and 81 have been produced. She now requests an order to produce the remaining documents.

3The purpose of this Interim Decision is to deal with the applicant’s requests for production and to provide case management direction for the hearing.

Production Requests

4The Tribunal has held that parties must disclose non-privileged documents that are “arguably relevant” to an issue in the Application, although the disclosed documents may not necessarily be admitted as relevant at the hearing: Lampi v. Princess House Products Canada, 2008 HRTO 1. To facilitate an accessible process that is fair, just, and highly expeditious, the Tribunal has developed Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code (the “Transitional Rules”).

5In the July 30, 2009 submissions responding to the production request, the respondents identify 574 documents that they had produced by that date. These are not cross-referenced to the applicant’s production request paragraphs and thus it is not entirely clear which requests these are meant to address. Therefore, based on the parties’ submissions, I deal with what I conclude are the outstanding document requests in categories as described below.

Documents requested that the respondents state they have produced

6The respondents do not object to and submit that they have produced all existing documents within their control with respect to paragraphs 5, 6, 8 through 21, 26, 27, 31, 32, 40, 42, 43, 45, 47, 57, 58, 59, 61, 62, 64, 65, 67, 68, 69, 70, 71, 72, 74, 75, 76, 77, 78, 81, 83, 84, 85 through 90, 92, 93, and 94. Further, they submit that they will produce all existing documents within their control in response to paragraph 79. Given that the respondents assert that they have supplied all existing documents in the paragraphs listed above, an order to produce additional existing documents for these paragraphs is not appropriate at this time.

Non-existent documents that the applicant requests the respondents create

7The respondents object to creating documents to satisfy part or all of quite a few of the production request paragraphs. A review of the applicant’s production requests shows that this is her expectation in part or all of at least the following paragraphs:

2,3,4,6,7,9,10,13,14,15,16,18,19,21,23,24,25,31,33,34,39,46,54,65,70, 71,74,80,91, and 95

8In order to ensure the fair, just and highly expeditious resolution of an Application, “the Tribunal may require a party to produce any document, information, or thing.” (Transitional Rule 4.3k, emphasis added) It is the applicant’s burden, however, to establish that the requested production is arguably relevant to an issue in the Application. In addition, given the expectation that these applications will be heard in a highly expeditious fashion, and the fact that the applicant’s production requests are so numerous, some thought must be given to avoiding production of repetitious and duplicative information.

9In paragraph 7, the applicant asks the respondent to prepare a “detailed narrative describing the exact process used by the respondent in selecting” employees for voluntary termination. The applicant supports this and six other requests by stating that these are required to permit her to analyze the issue of whether or not her termination was based on a discriminatory factor, which is a main issue of this Application. While on its face arguably relevant, this particular request appears to be a request for further explanation of and duplication of the information asked for in paragraph 6 “copies of all materials used in the assessment of the various candidates for termination including a listing of all criteria identified for analysis,“ etc. The applicant has not sufficiently explained the necessity for the additional information and the respondents submit that they have produced the existing documents requested in paragraph 6. I do not think that requiring the respondents to create this analysis is either necessary or would facilitate the fair, just and highly expeditious resolution of this Application. A production order is not appropriate for the narrative requested in paragraph 7.

10Similarly, the applicant has not met her burden of establishing the arguable relevance of the detailed explanations, analyses, or written details she seeks to have the respondents create in the other paragraphs listed above. Thus a production order is not appropriate for these requests either.

Documents that the respondents submit they have produced with information for which they claim privilege either redacted or not included in the production

11The respondents object to the applicant’s request that they identify by name other individuals or provide employee records for those who are neither parties nor have any interest in this Application. It thus objects to those aspects of the document requests in paragraphs 2, 3, 4, 6, 7, 8, 10, 11, 12, 13, 14, 18, 22, 23, 24, 25, 28, 35, 36, 37, 38, 46, 49, and 93.

12I am not satisfied at this stage that the actual names or personnel records of other employees are arguably relevant.

13Similarly, the respondents object to the release of certain documents requested in paragraphs 49 through 54 that they regard as commercially proprietary and competitively sensitive unless arrangements are made to preserve the confidentiality of these documents.

14The parties will be given the opportunity to make oral submissions on this production request at the hearing. If I order production of these documents, I will make the appropriate orders to protect the confidentiality of those materials.

Documents that the respondents object to producing as outside the relevant time period

15The respondents object to producing, as not arguably relevant, “out-dated” materials that did not apply at the time relevant to the applicant’s employment termination. For that reason they object to producing all documents relating to the policies governing the personal respondent’s sick leave under which the applicant was covered while employed as requested in paragraph 30. This objection applies also to paragraphs 55 and 56 as well as to several other paragraphs that request documents existing over a five-year period. (paragraphs 35 through 38).

16The respondents also object to some of these requests for both privacy considerations and arguable relevance.

17The parties will be asked to address the appropriate time frame for arguably relevant documents at the hearing.

Other documents requested

No production order is appropriate

18In paragraph 29, the applicant requests all of the records of the corporate respondent or its third party medical and disability insurance provider for the period of January 1, 2006 through January 31, 2007 for the applicant including any correspondence or assessments. The respondents object asserting that they do not have access to or control over these documents. This request for production is denied.

19Paragraph 96 is a blanket request for any other documents that the applicant would need to fully understand the objectives, criteria, and process used by the corporate respondent in reaching its decision to terminate the applicant’s employment. This is essentially a call for all arguably relevant documents in the respondents’ possession as is contemplated by Transitional Rule 9.3. Thus, there is no need for an order to this effect.

Further clarification required

20In response to some of the production to date, the applicant is dissatisfied with what she claims is incomplete production. For example, with respect to paragraph 30, the applicant submits that the booklets that she received did not reveal the corporate respondent’s policy on how to deal with employees returning from sick leave or short term disability. Given that the respondents claim they have produced the sick leave policies that were in place when the applicant returned from sick leave, I can only infer that the deficiency requested by the applicant does not exist. The respondent will be asked to clarify this at the hearing.

21In paragraph 41, the applicant requests copies of all mid-year 2006 performance reviews for her and other Ontario Sales Region staff. The respondents state that mid-year reviews are not retained and state that certain responsive materials have been produced. With respect to materials concerning the applicant only, the parties will be asked whether or not this is still a contested request.

22In paragraph 48, the applicant requests all comparison analytics of the Ontario Sales Region’s performance versus other regions on select performance criteria. The respondents state that they do not understand this request. The applicant will be asked to clarify this request at the hearing.

23In paragraph 63, the applicant asks for documentation of certain procedures used to maintain the confidentially of employee disability status. The respondents maintain they have produced documents responsive to this request. The respondents will be asked to identify these documents at the hearing.

24In paragraph 66, the applicant requests copies of all correspondence and documentation that she received while on Sick Leave/Disability regarding her options and employment status with the corporate respondent. The respondents object to the necessity of this request as it refers to documents that the applicant has “received” presumably not within their knowledge. However, they should know what documents they sent to the applicant with respect to this topic and therefore I order the respondents to produce a list of the documents that they have sent to the applicant that fall under the description of this request. At the hearing, the applicant will be given the opportunity to make a request for all arguably relevant documents from this list that she has misplaced or lost or otherwise no longer possesses.

25Finally, under the category Other Items the applicant makes various requests with no rationale other than “for various reasons connected to this Complaint.” In response to paragraph 82, the respondents submit that particulars of the tuition refund program have been produced. To the extent that this request is still contested and it deals with existing and arguably relevant non-privileged documents, the parties may make submissions regarding this request at the hearing.

CASE MANAGEMENT DIRECTION

26The Case Resolution Conference in this matter is scheduled for September 29 and 30, 2009.

27The disputed production requests will not affect the threshold issue, did the applicant have a disability at the relevant time and did the respondents know or ought they to have known about the disability. Accordingly, I will first hear the evidence relating to that threshold issue.

28Then, I will hear submissions on the contested production issues. If further production is ordered as a result of the parties’ submissions at the hearing, the hearing may be adjourned and rescheduled.

29If further production is not ordered, the hearing will continue as scheduled.

ORDER AND CASE MANAGEMENT DIRECTION

30The Tribunal makes the following Order:

Within a week of the date of this Interim Decision, the respondents will produce to the applicant a list of the documents described in production request paragraph 66 that it has previously delivered to the applicant.