Maria Michalek v. PNF Holdings Limited et al., 2009 HRTO 819

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Michalek

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

PNF Holdings Limited and RNE Holdings Limited o/a Park ’N Fly and Erwin Singh

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: June 10, 2009 Citation: 2009 HRTO 819 Indexed as: Michalek v. PNF Holdings Limited

WRITTEN SUBMISSION BY

Maria Michalek, Complainant ) Nicole Chrolavicius, Counsel PNF Holdings Limited and RNE Holdings ) Mark E. Geiger, Counsel Limited o/a Park ’N Fly, Corporate Respondent ) Ontario Human Rights Commission ) Bay Ryley, Counsel

INTRODUCTION

1This Interim Decision addresses the corporate respondent’s Request for Order During Proceedings (“Request”) for production and a Request by the Ontario Human Rights Commission (the “Commission”) acknowledging its withdrawal from the proceeding without conditions.

REQUEST FOR PRODUCTION

2The Request for production is for:

An order that the complainant and/or the Chief of Police for the Region of Peel provide to the respondent the original electronic/digital version of the five (5) photographs of Maria Michalek’s injury taken by Andrew Kastelic #1370, on July 13, 2004 (DSC_9035 to DSC_9039).

3The digital records of the photographs are in the possession and control of the Chief of Police for the Region of Peel. The corporate respondent filed a Statement of Delivery confirming that the parties and Peel Regional Police were served with the Request.

4The Tribunal advised the parties that the Request would be dealt with in writing. The complainant provided a Response, opposing the Request. The Chief of Police for the Region of Peel did not provide a Response to the Request. However, the corporate respondent included with the Request a copy of correspondence dated February 23, 2009, from General Counsel for Peel Regional Police which stated, in part, as follows:

We recognize the authority of the Human Rights Tribunal of Ontario to require a non-party to produce any document or information on the basis of relevance. We will not be making submissions on the relevance of the electronic photographs. We take no position with respect to the request of your client and will abide by any Order issued by the Tribunal. We would ask that any Order issued provide for the payment of our costs to produce the material.

5The threshold for production of documents in a human rights proceeding is "arguable relevance". While described as “not a particularly high bar”, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute: see Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at para. 37 (Ont. Bd. Inq.), referring to Biederman v. Banfai (2000), 38 C.R.R.R. D/395 at para. 14 (Ont. Bd. Inq.).

6The complainant seeks a finding that she was subjected to discrimination on the basis of sex and ethnic origin, and sexual harassment, in employment, contrary to sections 5(1), 7(2) and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). More particularly, the complainant alleges that she was assaulted by the personal respondent, an employee of the corporate respondent, on July 11, 2004. The complainant alleges that, during the course of the assault, the personal respondent bit her left breast, wounding her skin and leaving marks and bruising. The corporate respondent disagrees that the alleged incident occurred as reported by the complainant.

7In supplementary disclosure, dated November 7, 2008, the complainant provided the parties with five photographs taken of the complainant by an officer with the Peel Regional Police on July 13, 2004. The corporate respondent submits that it provided copies of the photographs to a forensic expert regularly used by the Crown in prosecutions involving bites. It submits that the expert is of the preliminary opinion that the photographs do not show wounds that would be produced by biting. However, in order for the expert to be able to provide his best evidence, it is submitted that he will need to examine the best version of the digital photographs that are available. The corporate respondent submits that whether the wounds were produced by biting is not only arguably relevant, but is a crucial element of the case. It submits that the original digital/electronic photographs are the best version of the photographs and therefore, are relevant to the issues in this proceeding.

8The complainant submits that the corporate respondent has failed to meet the test for arguable relevance to warrant production. The complainant submits that she has produced clear, colour photographs which were obtained as a result of an access request for personal information made under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. The complainant submits that the copies provided are entirely adequate and the corporate respondent has failed to demonstrate the deficiency of the photographs and, as such, the request is overly speculative.

9The complainant also submits that the request does not meet the test for arguable relevance as it is based, in part, on an error of fact. In particular, the complainant alleges that she was assaulted on July 11, 2004. The complainant points out that the corporate respondent asserts that there are medical reports which indicate that the complainant was examined by her doctor on July 4, one week before the alleged assault. The complainant submits that the corporate respondent appears to rely on this fact to make a spurious assertion that the complainant “concocted this event in an attempt to extract money from Park ‘N Fly, as well as other respondents and that her actions may in fact amount to fraud”. The complainant submits that she did not see her doctor on July 4 and this has been clarified by correspondence from her doctor’s office, forwarded to all counsel.

10Lastly, the complainant submits that the records are not arguably relevant to the issues in dispute as between the complainant and the corporate respondent. The complainant submits that the issue in dispute between the corporate respondent and the complainant, as distinct from the personal respondent, is a discriminatory investigation by an employer into allegations of sexual assault by an employee.

11The incident on July 11, 2004, and whether or not the complainant’s alleged wounds were caused by biting, are matters that are in dispute in this proceeding. The photographs produced by the complainant are arguably relevant to the issues in dispute. In my view, the electronic/digital records of the photographs are likely a better version of the photographs of the complainant’s alleged wounds and, as such, are also arguably relevant to this proceeding. Accordingly, I order the Chief of Police for the Region of Peel to produce the requested records.

12The Peel Regional Police have asked that any Order issued provide for the payment of costs to produce the material and the corporate respondent has indicated that it will undertake to pay for any reasonable costs that might arise out of the production. Accordingly, I order that the corporate respondent is responsible for the reasonable costs of producing the requested records. I also order that the corporate respondent is responsible for ensuring that the complainant and the individual respondent receive copies of the requested records and for any associated costs.

THE COMMISSION’S WITHDRAWAL REQUEST

13The Commission filed a Request for an Order acknowledging its withdrawal from the proceeding and finding that the withdrawal does not give rise to transitional issues and need not be the subject of any conditions. The other parties did not provide a Response to the Commission’s Request.

14As there do not appear to be any transitional issues, the Commission’s Request is granted. The Commission is permitted to withdraw from participation in the proceeding, without conditions.

ORDER

15The Tribunal makes the following Order:

a. Within 14 days of the date of this Interim Decision, the Chief of Police for the Region of Peel shall provide to the corporate respondent electronic/digital versions of the five (5) photographs of Maria Michalek taken by Andrew Kastelic #1370, on July 13, 2004 (DSC_9035 to DSC_9039). The corporate respondent is responsible for the reasonable costs of producing the requested records.

b. Within 21 days of the date of this Interim Decision, the corporate respondent shall ensure that the complainant and the personal respondent are provided with the above electronic/digital records.

c. The Commission is permitted to withdraw from participation in the proceeding, without conditions.