Gardiner v. 1708840 Ontario, 2010 HRTO 498

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean Gardiner

Applicant

-and-

1708840 Ontario Inc. c.o.b. as Mr. Rooter London,

2028493 Ontario Inc., 1394493 Ontario Inc. c.o.b. as Mr. Rooter Cambridge,

139442 Ontario Inc. c.o.b. as Hy-Pro Plumbing and Alan Little

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 5, 2010

Citation: 2010 HRTO 498

Indexed as: Gardiner v. 1708840 Ontario

1The applicant filed an Application on February 2, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”). The Application alleges discrimination in employment on the grounds of sexual harassment and sexual solicitation. The matter is scheduled for hearing on March 22, 23, 24 and 25, 2010. This Interim Decision deals with the respondents’ Request for Order During Proceedings (“RFOP”) dated January 22, 2010.

2The RFOP requests that the Tribunal dismiss the Application because the applicant’s allegations of sexual solicitation and sexual harassment fall outside the one year limitation period established by the Code. The respondents submit that the applicant’s delay in filing her Application has prejudiced the respondents’ ability to respond to her allegations. The RFOP also seeks production of the application’s medical records for the period March 2004 until the present, documentation to substantiate her job search for the period March 2004 until the present, and documentation with respect to any wages she has earned since her termination from the respondents. The respondents submit that the applicant has put these points into issue in her Application.

3The applicant has not filed a Response to a Request for Order During Proceedings and the time for doing so has now passed. However, the applicant sent 2 emails to the Tribunal and the respondents’ counsel, dated January 26, 2010, apparently in response to the RFOP. In those emails she commented that it is not only the sexual harassment and sexual solicitation that are at issue, but the personal respondent’s response to her when she denied his alleged advances which continued until she was terminated. In an email to the respondents’ counsel dated January 5, 2010, the applicant stated that she would not be providing the requested medical and personal financial information because of privilege.

Timeliness of the Application

4Sections 34(1) and (2) of the Code provide:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates;

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection 91) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

5On the first day of the hearing, March 22, 2010, the parties should be prepared to address the issue of the timeliness of the Application first before the Tribunal hears evidence on the merits of the Application and the applicant should be prepared to testify why the delay was incurred in good faith. The respondents should be prepared to have a witness testify about the prejudice, if any, they have suffered. Further, if either party wishes to rely upon any additional facts, documents or case law that is not already filed with the Tribunal, then the party should deliver this to the other party within 7 days of the date of this Interim Decision and file it with the Tribunal. The parties may wish to consider the Tribunal’s jurisprudence on section 34(2) which is found at www.canlii.org, including, but not limited to Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

Production of Medical Records and Financial Documentation

6Rule 1.7 of the Tribunal’s Rules provides:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form

7The test for production is not high. In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated 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.

8Based upon the allegations in the Application, I find that the medical and financial records that the respondents are requesting are arguably relevant.

9However, arguably relevant documents may not be ordered to be disclosed if they are “privileged”. It is not enough for a party to merely state that it will not disclose arguably relevant documents because of “privilege”. “Privilege” is a legal term for which certain criteria must be met for a document not to be disclosed on the basis of privilege. Examples of privilege can include: solicitor-client communications (see Smith v. Menzies Chrysler Incorporated, 2008 HRTO 37; litigation privilege (see R.A. v. Toronto Police Services Board, 2009 HRTO 231; and statutory privilege (see Regisford v. Dufferin-Peel Catholic District School Board, 2009 HRTO 1429. Medical records can be “privileged” in some cases, but not in others (see McEwan v. Commercial Bakeries Corp., 2004 HRTO 13 and will be determined on a case-by-case basis.

10The Tribunal is sensitive to privacy issues in relation to the production of non-privileged medical records and may address privacy concerns in a variety of ways including restricting individuals who may view the documents and limiting the documents to be produced (see Lampi, supra, at para. 11.).

11The applicant has cited “privilege” as the reason she will not produce the medical and financial documentation being requested by the respondents, but does not provide any explanation as to how these documents are privileged. Therefore, within 5 days of the date of this Interim Decision, the applicant is directed to deliver submissions to the respondents’ counsel and file with the Tribunal as to why the medical and financial documents being sought by the respondents are “privileged”.

Production of Job Search Documentation

12The applicant has not filed any response to the respondents’ Request that she produce copies of her job search efforts. She alleges in her Application several times that she commenced a job search in 2004, which she continued during her employment, to get away from the personal respondent’s conduct. I find the respondents’ Request that the applicant’s job search documentation be produced to be arguably relevant and I therefore order the applicant to produce the documentation within 5 days of the date of this Interim Decision. The applicant is to provide a copy of this documentation to the respondents’ counsel and file it with the Tribunal.

Copies of the Applicant’s Production

13I note that the Tribunal received very faint copies of the applicant’s documentation, as did the respondents’ counsel as noted in his January 5, 2010 correspondence to the applicant. The applicant is directed to deliver better and clearer copies of her documentation to the respondents’ counsel and file with the Tribunal within 5 days of the date of this Interim Decision.

Order

14Therefore, the Tribunal orders:

1. If either party wishes to rely upon any additional facts, documents or case law that has not already filed with the Tribunal in relation to the delay in filing the Application, the party should deliver this material to the other party within 7 days of the date of this Interim Decision and file it with the Tribunal;

2. Within 5 days of the date of this Interim Decision, the applicant is directed to deliver submissions to the respondents’ counsel and file with the Tribunal as to why the medical and financial documents being sought by the respondents are “privileged”.

3. The applicant is ordered to provide copies of her job search documentation from 2004 onwards within 5 days of the date of this Interim Decision to the respondents’ counsel and file with the Tribunal.

4. The applicant is directed to deliver better and clearer copies of her documentation to the respondents’ counsel and file it with the Tribunal within 5 days of the date of this Interim Decision