HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Ellis and the Applicants listed on Schedule “A”
Applicants
-and-
Petro-Canada Inc.
Respondent
INterim DECISION
Adjudicator: Kaye Joachim
TR-0584-09; TR-0585-09; TR-0617-09; TR-0618-09; TR-0623-09; TR-0626-09; TR-0632-09; TR-0652-09; TR-0688-09; TR-0695-09; TR-0699-09; TR-0712-09; TR-0716-09; TR-0759-09; TR-0763-09
Indexed as: Ellis v. Petro-Canada
INTRODUCTION
1This Interim Decision addresses requests for production by the parties.
2The Tribunal received 20 transitional Applications against the respondent. The applicants are former employees of the respondent who, except for one, were given severance packages in or around May 2005 following a downsizing by the respondent. The applicants all allege that the decision to terminate their employment and not employ them elsewhere in the corporation was because of their age and or disability. Some applicants additionally allege reprisal. Two applicants also allege sex and family status.
3A significant aspect of the allegation of discrimination is that the respondent created a ranking of employees and considered age and participation in the attendance management program as factors in ranking the employees. The respondent agreed that it prepared a ranked list of employees every year as part of the annual performance assessment. These lists were used to reassign high and low ranking employees as required. The lists were created using input from the various supervisors.
4In a prior Interim Decision, 2009 HRTO 1430, I directed that the Applications would be heard together. Mr. Waddell was chosen by the applicants to be their representative and he is responsible for communicating with the other applicants and forwarding their positions to the Tribunal and to respondent’s counsel. Mr. Waddell has delivered to the Tribunal written authorizations from each applicant, except Mr. Lowe, confirming that he may represent them.
5Mr. Lowe indicated on December 7, 2009 that he was considering whether to continue to participate in these proceedings. Mr. Lowe shall either deliver the required authorizations and consents or indicate that he intends to represent himself within ten days of the date of receipt of this Interim Decision or he will be deemed to have abandoned his Application.
6Each applicant (except Mr. Lowe) has also consented to the disclosure to the respondent of their health/medical records maintained by the Occupation Health Services department of the respondent.
7The respondent seeks further medical information with respect to each applicant. Some of the applicants agreed to the request for additional medical information and some opposed it.
8At this stage I am not satisfied that any additional medical information is required. The underlying theory of the applicants’ allegation of discrimination is that the respondent used the applicants’ participation in the attendance management program as a proxy for disability or perceived disability. In some cases, the assertion is that the respondent also relied upon its personal knowledge of the applicants’ disabilities, if any.
9Accordingly, the respondent does not require any further information about the applicants’ health. It can respond to the allegation that disability or participation in the attendance management program was or was not a factor in the placement on the list based on the information known at the time of the downsizing.
10The respondent also sought production of surveys referenced by the applicants in their Applications. Mr. Waddell indicated that he conducted telephone surveys with former employees. He has agreed to produce the surveys with the names and identifying information of the participants redacted, in order to honour the promise of confidentiality he gave to the participants. He has offered to provide to the Tribunal a code whereby the Tribunal could identify the participants. At this stage, I am satisfied that the redacted version of the surveys suggested by Mr. Waddell is sufficient. If further information is required, that issue will be addressed at a later date. The Tribunal does not require any identifying information at this stage.
11The respondent also sought production of all communications between Mr. Waddell and the applicants on the basis that these communications caused the applicants to come forward and file complaints. The respondent submits these communications may affect the credibility of the applicants’ evidence.
12I am not satisfied that communications between the applicants and Mr. Waddell are arguably relevant to an issue in these proceedings. The basis for each applicants' claim of discrimination is set out in the original complaints.
13The parties are directed to write to the Tribunal (and copy the other parties’ representative) at the earliest opportunity if there are any other outstanding production requests.
14The hearing will take place on June 7, 8, 9, 10, 11 and 21, 2010.
Dated at Toronto, this 7^th^ day of January, 2010.
“Signed by”
Kaye Joachim
Alternate Chair
Schedule “A”
APPLICANTS
RESPONDENTS
James Ellis
T-0190-08
Petro-Canada Inc.
Kevin Howard Lowe
T-0741-08
Petro-Canada Inc.
Frank Kasmara
TR-0511-09
Petro-Canada Inc.
William Brown
TR-0580-09
Petro-Canada Inc.
Robert Paterson
TR-0582-09
Petro-Canada Inc.
Richard Kelso
TR-0584-09
Petro-Canada Inc.
George Heelis
TR-0585-09
Petro-Canada Inc.
Thomas Saunders
TR-0617-09
Petro-Canada Inc.
Robert Waddell
TR-0618-09
Petro-Canada Inc.
Radcliffe Meikle
TR-0623-09
Petro-Canada Inc.
William Michaluk
TR-0626-09
Petro-Canada Inc.
Steven Bowie
TR-0632-09
Petro-Canada Inc.
Helen Solski
TR-0652-09
Petro-Canada Inc.
Susan Cassady
TR-0688-09
Petro-Canada Inc.
Robert March
TR-0695-09
Petro-Canada Inc.
Dennis Reeves
TR-0699-09
Petro-Canada Inc.
Morris Kocken
TR-0712-09
Petro-Canada Inc.
Richard Dimock
TR-0716-09
Petro-Canada Inc.
William Rainey
TR-0759-09
Petro-Canada Inc.
Robert Kreuger
TR-0763-09
Petro-Canada Inc.