Dionne Newton v. City of Toronto, 2009 HRTO 2213

Human Rights Tribunal of Ontario

B E T W E E N:

Dionne Newton Applicant

-and-

City of Toronto Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: December 18, 2009 Citation: 2009 HRTO 2213 Indexed As: Newton v. Toronto (City)

1This Application was filed January 21, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing in this matter is scheduled for January 11, 2010. This Interim Decision deals with the parties’ Requests for Order During Proceedings.

2The Application alleges that the applicant’s employment was terminated in November 2006 after complaining of sexual harassment in September 2005.

3In a prior Interim Decision, 2009 HRTO 1870, I ordered the respondent to produce the notes of the investigator and the Labour Relations staff conducting the investigation into the applicant’s allegations as well as any recommendations regarding training.

4The respondent submitted that this production order was more extensive than the production requested by the applicant and that it had had no opportunity to respond to the request for the investigation notes. The parties were permitted to file additional submissions and these were reviewed.

5In order to understand whether the investigator’s notes are arguably relevant to an issue in this proceeding, an understanding of the alleged discrimination and the respondent’s response is set out below.

6The applicant was assigned various temporary assignments with the respondent from April 2003 until December 31, 2005.

7In August 2005 the applicant raised concerns with her manager about inappropriate sexual conduct in the workplace. In September 2005 the applicant made a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, based on the stress caused by the harassment.

8The applicant was offered work in an alternative location in September 2005, but submitted a medical note indicating that she was not capable of returning to work for three months.

9The applicant met with Irit Kelman, Senior Human Rights consultant, to clarify her complaints of harassment and poisoned work environment. Many of these complaints are set out in the current Application. Ms. Kelman conducted an investigation into the applicant’s allegations and interviewed a number of the applicant’s colleagues and supervisors. In April 2006 Ms. Kelman issued a final investigation report in which she upheld some of the applicant’s allegations. The applicant was given an opportunity to make submissions on the report and the recommendations.

10Meanwhile the applicant’s temporary assignment was scheduled to end on December 31, 2005. As she was on leave and as the investigation was continuing, the applicant’s employment status was maintained as “unpaid leave.”

11The respondent alleges that despite numerous attempts to contact the applicant since December 2005 and numerous offers of alternative employment the applicant has not responded. The respondent terminated the applicant’s employment in November 2006 on the basis that she had abandoned her employment.

12In my view the issues in this case are as follows:

a. Did the applicant experience a poisoned work experience in the Taxi Division? The respondent concluded that she did, based on its internal investigation.

b. Did the respondent respond appropriately to the allegations of harassment and poisoned work environment? That is an issue that remains to be determined.

c. Did the applicant’s disability or filing of a complaint play a role in the termination of her employment? That is an issue that remains to be determined.

13Having regard to the issues, I am not satisfied that the personal notes of the investigator are arguably relevant at this stage. The 70-page investigation report provides the respondent’s position on how the allegations were handled. The notes behind the report are not arguably relevant.

14Accordingly, the respondent is not required to disclose the notes of the investigator.