HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Yu-Wie Chen
Applicant
-and-
Laurentian University
Respondent
interim deCISION
Adjudicator: David Muir
Indexed as: Chen v. Laurentian University
1This is an Application filed on February 25, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This decision deals with Request for Order During Proceedings filed by the applicant seeking the production of a number of documents from the respondent.
2The applicant alleges that her right to be free from discrimination in employment on the basis of marital status, sex, colour, ethnic origin and place of origin was infringed by the respondent Laurentian University. The applicant also alleges reprisal. Amongst other defences the respondent states that the decision-making surrounding the applicant’s position and employment were made for bona fide business reasons, entirely unrelated to any of the Code protected grounds alleged by the applicant.
3The applicant makes the following production requests:
a. The operating budget of Laurentian University’s (“Laurentian”) Faculty of Science and Engineering for the past 10 years;
b. Laurentian’s operating budget for the last 10 years;
c. Laurentian’s financial statements for the past 10 years;
d. List of Laurentian’s programs, sections, and facilities that have been closed in the last 10 years, on the academic side;
e. List of Laurentian’s programs, sections, and facilities that have been closed in the last 10 years, on the non-academic side;
f. Disclosure of Laurentian’s new hires (both term and permanent employees) who were offered employment without a job description in the past 10 years;
g. Any and all documents related to Laurentian’s investigation of Dr. Chen’s May 1, 2007 complaint filed at the CRO;
h. The May 16, 2007 letter referred to at paragraph 20 of Laurentian’s Schedule “A” Response where it is indicated that the CAF-AES facility would be closed due to financial constraints;
i. All documents relating to the financial position of both the liquid and solid phase of CAF from 2004 to the present time, including but not limited to, their budgets, expenses and revenues;
j. Dr. Hem’s (former Research Scientist in the solid phase) annual reports from 2004 to 2007;
k. Any and all documents relating to Laurentian’s decision to continue financial support of the CAF-solid phase and in particular, documents from 2006 to the present time;
l. 2004 job description of the Research Scientist position – solid phase;
m. Any and all documents relating to the creation of new academic and non-academic programs from January 1, 2004 to the present time;
n. Laurentian’s protocols and/or policies relating to the termination of library access;
o. Any and all documents relating to Dr. Chen’s complaints of discrimination during Laurentian’s hiring process from December 19, 2002 to December 31, 2004; and,
p. All user logbook records at CAF solid-phase from July 1, 2004 to the present time, to the extent that they still exist.
4The applicant also requests an Order that the respondent be responsible for any reasonable costs that may arise from producing the above-noted documents.
5The applicant states that the documents contemplated at paragraphs a to f, h to k, m and p are relevant to the respondent’s defence that the CAF-AES (liquid phase) was closed for financial and legitimate business reasons, while CAF’s solid phase counterpart remains operational because of its business partnership with the Ontario Ministry of Northern Development and Mines. The applicant disputes the reasons for the closure of CAF-AES.
6The applicant states that the documents at paragraphs g, n and o are arguably relevant to the applicant’s allegations of reprisal and the respondent’s defence that it acted at all times in accordance with its policies and the Code.
7The applicant states that the document identified in paragraph l relates to her allegation that she was treated differently on account of her race, colour, ethnic origin and place of origin in comparison to her CAF-solid phase Research Scientist counterpart at the time. The document is also relevant to the allegation that the permanent position she was promised was unilaterally changed from “senior analytical scientist” to “research scientist” and the allegation of the respondent that a decision was made to divide the CAF into two phases.
8The respondent states that it has provided some of the documents requested, but has objections to much of what is being sought on a number of bases.
9With respect to the requests in paragraphs a, c, d, e, i and k the respondent states that these documents are privileged or confidential and irrelevant. The basis for the claim of privilege is not articulated but in respect of the documents described in this paragraph the respondents state that they are obligated to safeguard them against disclosure as provided under section 17 of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended (“FIPPA”).
10The respondent states that the documents described in paragraphs g and o are subject to litigation privilege. The respondents state that these documents were prepared for the purposes of actual or contemplated litigation.
11The respondent states that the documents described in paragraphs f, j, m and p are irrelevant.
12The respondent states that the documents described in paragraphs h and n, to the extent that they exist have been produced.
Decision
13As stated by the applicant, the test for production is a low one, arguable relevance. I am not determining ultimate relevance or admissibility but only whether a document or thing is arguably relevant and should be produced to the other side prior to the hearing. In this case the hearing is scheduled to begin on March 1, 2010.
14I am satisfied based on the submissions of the parties that the documents requested by the applicant as described in paragraphs a, b, c, d, I, k, l and o are arguably relevant to the issues raised by the complaint underlying this Application. I am not satisfied that a Tribunal Order with respect to any of these documents can be restricted by section 17 of the FIPPA. I agree with the applicant that this provision applies to information provided by a third party and it is not clear how it would apply to any of the documents requested; in particular, the internal financial record keeping of the respondent University. I also note that the applicant states that much of this information is publicly available and published on the respondent’s website.
15As regards the claim of litigation privilege, it is trite to state that the onus to establish the privilege rests with the party asserting it. There is no evidence to support the assertion that any of the documents in question were created in reasonable contemplation of litigation or for the dominant purpose of apprehended litigation.
16On the other hand I am not satisfied that the documents described in paragraphs f, j, m and p are arguably relevant to the issues raised by this Application and accordingly no Order in respect of them will be made at this stage.
ORDERS
17The Tribunal orders that the respondent Laurentian immediately produce to the applicant the following documents:
a. Operating budget of Laurentian University’s (Laurentian) Faculty of Science and Engineering for the past 10 years;
b. Laurentian’s operating budget for the last 10 years;
c. Laurentian’s financial statements for the past 10 years;
d. List of Laurentian’s programs, sections, and facilities that have been closed in the last 10 years, on the academic side;
e. List of Laurentian’s programs, sections, and facilities that have been closed in the last 10 years, on the non-academic side;
f. Any and all documents related to Laurentian’s investigation of Dr. Chen’s May 1, 2007 complaint field at the CRO;
g. All documents relating to the financial position of both the liquid and solid phase of CAF from 2004 to the present time, including but not limited to, their budgets, expenses and revenues;
h. Any and all documents relating to Laurentian’s decision to continue financial support of the CAF-solid phase and in particular, documents from 2006 to the present time;
i. 2004 job description of the Research Scientist position – solid phase;
j. Any and all documents relating to Dr. Chen’s complaints of discrimination during Laurentian’s hiring process from December 19, 2002 to December 31, 2004.
18The respondent will bear the cost of producing these materials.
19I am not seized.
Dated at Toronto, this 25th day of January, 2010.
“Signed by”
David Muir
Vice-chair