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

Date: March 12, 2010

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

Citation: 2010 HRTO 536

Indexed as: Ellis v. Petro-Canada

INTRODUCTION

[1] This Interim Decision addresses requests for production by the applicants. The hearing in this matter is scheduled to begin on June 7, 2010.

[2] The applicants are former employees of the respondent who, except for one, were given severance packages in or around May 2005 following a downsizing. The applicants all allege that the decision to terminate their employment and not employ them elsewhere in the respondent company was because of their age and/or disability. Some applicants additionally allege reprisal. Two applicants additionally allege discrimination on the grounds of sex and family status.

[3] A 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 agrees that it prepared ranked lists 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.

[4] The applicants made extensive requests for production on January 11, 2010, February 9, 2010 and again on March 10, 2010. The requests include, for example, all the attendance management reports relating to the applicant Mr. Waddell since date of hire in 1979 to the date of termination in 2005; all job postings from 2003 to 2006 along with resumés of the successful applicants and their ages; lists of unionized and non-unionized employees across Canada who were redeployed as a form of accommodation from 1984. These are just some of the many requests. I fail to see the arguable relevance of the requests as no explanation whatsoever was given for any of the requests. The situation is also complicated by the fact that the downsizing occurred in 2005 and many of the requested documents no longer exist or it would take an enormous effort on the part of the respondent to attempt to locate them.

[5] At this stage, I am not satisfied that it is appropriate to order any of the requested production from the respondent at this time. I am mindful that the respondent already produced many documents during the Commission investigation process. I also note that the respondent is under a duty to disclose all arguably relevant documents on its own initiative.

[6] In my view, the most fair, just and expeditious way to move forward is to proceed to the hearing and to hear the applicants’ evidence and the respondent’s evidence.

[7] The appropriate time to inquire into the arguable relevance, existence and potential to retrieve any further arguably relevant documents will be during the cross examination of the respondent’s witnesses.

[8] If further production is required it may be ordered at that time. I recognize that this may necessitate an adjournment of the hearing at that stage, in order to provide the parties time to produce and review the documents.

[9] I also recognize that the respondent may routinely clear out old documentation and if this is the case, the respondent is directed to refrain from disposing of documentation that the applicants have identified in their production request or that could be arguably relevant to these Applications.

[10] The hearing will take place on June 7, 8, 9, 10, 11 and 21, 2010.

Dated at Toronto, this 12^th day of March, 2010.

“Signed by”

Kaye Joachim

Alternate Chair

Schedule “A”

APPLICANTS

RESPONDENT

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.

Ellis v. Petro-Canada, 2010 HRTO 536

Case Summary

[1] This Interim Decision addresses requests for production by the applicants. The hearing in this matter is scheduled to begin on June 7, 2010.

[6] In my view, the most fair, just and expeditious way to move forward is to proceed to the hearing and to hear the applicants’ evidence and the respondent’s evidence.

[7] The appropriate time to inquire into the arguable relevance, existence and potential to retrieve any further arguably relevant documents will be during the cross examination of the respondent’s witnesses.

[8] If further production is required it may be ordered at that time. I recognize that this may necessitate an adjournment of the hearing at that stage, in order to provide the parties time to produce and review the documents.

[9] I also recognize that the respondent may routinely clear out old documentation and if this is the case, the respondent is directed to refrain from disposing of documentation that the applicants have identified in their production request or that could be arguably relevant to these Applications.

[10] The hearing will take place on June 7, 8, 9, 10, 11 and 21, 2010.

Dated at Toronto, this 12^th day of March, 2010.

[1] This Interim Decision addresses requests for production by the applicants. The hearing in this matter is scheduled to begin on June 7, 2010.

[6] In my view, the most fair, just and expeditious way to move forward is to proceed to the hearing and to hear the applicants’ evidence and the respondent’s evidence.

[7] The appropriate time to inquire into the arguable relevance, existence and potential to retrieve any further arguably relevant documents will be during the cross examination of the respondent’s witnesses.

[8] If further production is required it may be ordered at that time. I recognize that this may necessitate an adjournment of the hearing at that stage, in order to provide the parties time to produce and review the documents.

[9] I also recognize that the respondent may routinely clear out old documentation and if this is the case, the respondent is directed to refrain from disposing of documentation that the applicants have identified in their production request or that could be arguably relevant to these Applications.

[10] The hearing will take place on June 7, 8, 9, 10, 11 and 21, 2010.

Dated at Toronto, this 12th day of March, 2010.

Dated at Toronto, this 12^th day of March, 2010.