Benjamin v. PTC Accounting & Finance Inc., 2011 HRTO 1780

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Orith Benjamin

Applicant

-and-

PTC Accounting & Finance Inc., Brenda Kilger and Karen Eyers

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: September 29, 2011 Citation: 2011 HRTO 1780 Indexed as: Benjamin v. PTC Accounting & Finance Inc.

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, ( the “Code”), dated June 4, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 21, 2008.

2The applicant alleges that she experienced discrimination and harassment in employment because of disability, marital status and family status contrary to ss. 5 and 9 of the Code, arising out of events that occurred in 2007 and culminated in the termination of her employment in December 2007.

3The purpose of this Interim Decision is to address the applicant’s request for production of documents. I will also address other matters raised by the parties in their correspondence or relating to case management.

Applicant’s request for production

4The applicant seeks production of a document called a “job order position form” for all deals brought in to the respondent company in 2007, together with a breakdown regarding which recruiter worked on which deal even if the deal was not closed. The applicant also seeks a job order summary for each recruiter who worked at the respondent company in 2007.

5The respondents have provided in their documents a list showing the value of jobs allocated to the applicant in 2006 and 2007. However, one of the issues raised in the applicant’s complaint is that following her return in March 2007 from her medical absence, she was treated differently from other recruiters in relation to the assignment of jobs or deals. In my view, this is an issue that is arguably relevant to the matters at issue in the proceeding.

6The relevant period for which to assess whether the applicant experienced differential treatment as compared to other recruiters in relation to the assignment of deals is the period from the applicant’s return to work in March 2007 until the termination of her employment on December 11, 2007. In order to have a comparator, I agree with the respondents that looking at the 2006 year would be appropriate. Accordingly, I am requiring the respondents to produce a “job order position form” or other similar document that will show all deals brought in to the respondent company in 2006 and 2007 (from March until December 11) together with a breakdown regarding which recruiter worked on which deal even if the deal was not closed. I also am requiring the respondents to produce a “job order summary” or similar documents for each recruiter who worked at the respondent company in 2006 and 2007.

7The applicant also has requested her 2005, 2006, 2007 and 2008 commission reports, which she states will show the drop in her commissions due to the lack of deals. I agree with the respondents that the applicant’s 2008 commission report is not relevant to this stage of the proceeding, as this matter has been bifurcated to deal first with liability. I also agree with the respondents that it is not necessary to extend the timeline back to 2005 in order to compare the data. However, in my view, the applicant’s 2006 and 2007 commission reports are arguably relevant to the matters at issue and I order them to be produced.

8The applicant also has requested a breakdown of commissions paid to all recruiters in 2007 and 2008. Once again, in my view, the 2008 period is not relevant at this stage of the proceeding. However, in my view, the 2007 period, at least during the time when the applicant was at work, is relevant and I order produced reports of commissions paid to all recruiters for the period from the applicant’s return to work in March 2007 until the termination of her employment on December 11, 2007. Once again, in order to have an appropriate comparator, I also order disclosed reports of commissions paid to all recruiters in 2006.

9The applicant has requested disclosure of the salaries and bonus paid to the sales manager, the recruiter manager and the human resources director in 2007 and 2008. I fail to see the relevance of such documents to the matters at issue in this proceeding and I do not order them disclosed.

Bifurcation of hearing

10As no party has objected to the bifurcation of this proceeding to deal first with liability under the Code and then to deal with remedy at a later stage and only if a violation of the Code is found, I hereby confirm that the proceeding is bifurcated.

Evidence from the applicant

11The respondents have taken the position in correspondence that, as the applicant has not identified herself as a witness and has not filed a description of what she will say, they intend to object to her testifying at the hearing. In response, the applicant has indicated her intention to testify on her own behalf at the hearing.

12In my experience, when dealing with unrepresented parties, it is not at all uncommon for an applicant not to understand that she herself is not only a party to the proceeding but is also a witness. In my view, no prejudice is caused to the respondents if the applicant is permitted to provide evidence at the hearing consistent with what is set out in her complaint and in her statement of additional facts, which in my view can stand as a description of what she will say. Accordingly, the applicant will be permitted to testify at the hearing.

Documents from the applicant

13In my Interim Decision dated August 25, 2011 (2011 HRTO 1593), I afforded the applicant a further opportunity to disclose to the respondents and file with the Tribunal a copy of all arguably relevant documents in her possession. This was to have been done within 14 calendar days of the date of this decision.

14By letter dated September 22, 2011, the applicant wrote to the Tribunal to state that she already had provided the Tribunal with a copy of all documents that she has in her possession. To be clear, the Tribunal has received no documents from the applicant. Nor is a statement that documents already have been provided to the Tribunal sufficient, as these documents also are required to be disclosed by the applicant to the respondents.

15I am aware that in transitional applications, there sometimes is confusion between the Tribunal and the Commission. The applicant may previously have provided documents to the Commission in connection with her complaint, but documents in the Commission’s possession are not shared with the Tribunal in relation to a transitional application. The Tribunal only has possession of whatever documents have been filed by the parties with the Tribunal directly.

16Accordingly, if the applicant is in possession of any arguably relevant documents, she is required immediately to disclose them to the respondents’ counsel and file them with the Tribunal, and in any event by no later than Tuesday, October 4, 2011. The requirement for the applicant to disclose and file her arguably relevant documents by this time does not indicate that I am prepared to accept any such documents into evidence at the hearing, and I will make any such determination following receipt of these documents and after hearing submissions from the parties.

17I also note that the applicant has not provided any of the information and material regarding remedy that was requested in my previous Interim Decision, and the applicant is directed to provide this information and material by no later than Tuesday, October 4, 2011. The information and material regarding remedy required from the applicant is set out in my Interim Decision dated August 25, 2009 at paragraphs 16 to 18.

Respondents’ Documents

18I note that an issue has arisen regarding the disclosure of the respondents’ documents to the applicant. The respondents state that they disclosed these documents by e-mail and have provided a confirmation that the e-mail was successfully sent to the applicant’s e-mail address. The applicant states that she has not received this material.

19The material sent by the respondents to the applicant was also filed with the Tribunal, and consists of a bound volume of documents with some 22 tabs. While the Tribunal’s Rules do permit service of material by e-mail, in my view this is not the appropriate manner in which to serve a book of documents. Accordingly, I hereby direct the respondents to send to the applicant by courier (if they have not already done so) a copy of their Book of Documents in the same form that was filed with the Tribunal on September 29, 2011. This is to be done by no later than Tuesday, October 4, 2011. In addition, the documents required to be disclosed pursuant to this decision shall be served upon the applicant both by e-mail and by courier.

ORDER

20For all of the foregoing reasons, the respondents are ordered to serve on the applicant by e-mail and courier and file with the Tribunal the following documents and information by no later than Thursday, October 6, 2011:

a) a “job order position form” or other similar document that will show all deals brought in to the respondent company in 2006 and 2007 (from March until December 11) together with a breakdown regarding which recruiter worked on which deal even if the deal was not closed;

b) a “job order summary” or similar document for each recruiter who worked at the respondent company in 2006 and 2007;

c) the applicant’s 2006 and 2007 commission reports; and

d) reports of commissions paid to all recruiters for 2006 and for the period from the applicant’s return to work in March 2007 until the termination of her employment on December 11, 2007.

21In addition, by no later than Tuesday, October 4, 2011

a) The applicant shall disclose to the respondents and file with the Tribunal a copy of all arguably relevant documents in her possession;

b) The applicant shall provide to the respondents and the Tribunal the information and material regarding remedy as set out in my Interim Decision dated August 25, 2009 at paragraphs 16 to 18; and

c) The respondents shall serve upon the applicant by courier a copy of their Book of Documents.