Lehoux v. Baxter, 2010 HRTO 299

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Lehoux

Applicant

-and-

Baxter Corporation

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 9, 2010

Citation: 2010 HRTO 299

Indexed as: Lehoux v. Baxter

1This is an Application filed June 24, 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"). A hearing is scheduled for February 19, 2010. The purpose of this Interim Decision is to address both parties' Requests for production and the respondent's Request for the removal of the personal respondents.

2The applicant alleges that she was discriminated in employment by the respondents on the basis of pregnancy. She asserts that they failed to accommodate her requests for accommodation for symptoms related to her pregnancy from September 22, 2005 until she took an early maternity leave on February 6, 2006. She alleges that the respondents required her to take a leave of absence and therefore she made a claim for short term disability benefits to Maritime Life which was denied.

3The respondent Lisa Ward is the corporate respondent's Human Resources Manager. The respondent Betty Mercer was the applicant's immediate supervisor. The respondent Peter Weiss is the applicant's manager. The respondents assert that they accommodated the applicant's pregnancy related needs based on the medical information provided by her treating physician and that the applicant declined to accept some of the suggested accommodations. In January 2006 the respondents found work for the applicant within her restrictions until February 2006 when the applicant chose to take an early maternity leave.

Bifurcation

4In light of the complexity of the issues related to remedy and the extent of production related to remedial issues, I have determined hat it would be fair, just and expeditious to bifurcate the hearing. Thus, the hearing commencing February 19, 2010 will only address whether the applicant's Code rights have been breached. If required, a hearing with respect to remedy will be scheduled.

Production Requests

5The respondents have been seeking production of documents from the applicant for some time. The parties agree that the test for ordering production is as set out in Lampi v. Princess House Products Canada 2008 HRTO 1 at paragraphs 8 and 9:

The threshold for production and disclosure of documents before the Tribunal is "arguable relevance" – 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 before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

6I find that the following documents are arguably relevant and ought to be produced by the applicant within 7 days of receipt of this Interim Decision

• Dr. Affoo's clinical notes and reports, forms, etc relating to the applicant from September 22, 2005 to February 28, 2006;

7The cost of obtaining these notes will be borne by the respondents.

8The applicant is directed to deliver a signed consent within five days of the date of this Interim Decision to permit the respondents to obtain the following arguably relevant documents:

• Dr. Abdulhafid's clinical notes and reports, forms, etc relating to the applicant from September 22, 2005 to February 28, 2006 (the applicant has stated that she can no longer locate this physician, but the respondents should be given the opportunity to locate the doctor);

• All clinical notes and reports, forms, etc relating to the applicant from September 22, 2005 to February 28, 2006 in the applicant's Manulife Financial file

• All clinical notes and reports, forms, etc relating to the applicant from September 22, 2005 to February 28, 2006 in the Plant Nurse's file (I recognize that the applicant asserts that she has already disclosed this information, but if further consent is required, it must be provided);

9The respondents have agreed to produce seven of the eleven requested documents, without prejudice to their right to argue about the relevance. I direct the respondents to provide the documents within seven days of the date of this Interim Decision.

10The respondents assert that items 4 and 10 do not exist and therefore I decline to order production

11I am not satisfied that the applicant's request for operating procedures (item 6) is arguably relevant. The requests for information regarding other employees (items 2, 7 and 8) are also denied at this stage. The Adjudicator can consider at the hearing whether to order this request is arguably relevant, depending on the evidence.

Removal of Personal Respondents

12The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board , 2008 HRTO 31, at paras 4-5:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

13Apart from a single allegation that Ms. Mercer was rude and unsympathetic, I find that the allegations against the personal respondent relate to their efforts (or lack thereof) to find appropriate accommodation for the applicant. There is no dispute about the corporate respondent's vicarious liability or capacity to provide a remedy. The mere request for an apology cannot be used to justify retaining the personal respondents. In these circumstances, the personal respondents will be removed from the style of cause.