HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Diane Buchanan
Applicant
-and-
Intact Financial Corporation
Respondent
INTERIM decision
Adjudicator: Geneviève Debané
Indexed as: Buchanan v. Intact Financial Corporation
WRITTEN SUBMISSIONS
Intact Financial Corporation, Respondent ) James D. Heeney, Counsel
1This is an Application filed on June 22, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and is scheduled for hearing on February 8, 2012. This Interim Decision addresses a Request for Order During Proceeding filed by the respondent on September 15, 2011, for disclosure of certain allegedly arguably relevant documents (the “Request”).
2In the Request the respondent seeks the production of documents, including information with respect to the applicant’s alleged loan business, construction business and mitigation documentation. The respondent also seeks the production of the applicant’s cell phone records for the year 2009. The respondent asserts that these documents are arguably relevant to the proceeding.
3The applicant did not file a response to the respondent’s Request. This Request is therefore unopposed by the applicant.
FINDINGS AND ANALYSIS
4The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. 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: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9.
5In the Application the applicant alleges that she was framed with respect to serious allegations of misconduct in the workplace, which resulted in her termination from employment with the respondent.
6The respondent alleges that the applicant did not cooperate during an investigation into allegations of fraud, and that further the applicant was engaged in two personal businesses. The applicant refused to provide her cell phone records with respect to conversations with a client who was charged as a result of not having insurance coverage, which he believed he had purchased.
7I find that most of the documents sought by the respondents are arguably relevant. Though the issue before the Tribunal is whether there has been a contravention of the Code, the applicant has raised in her Application the issue that she was framed for having made certain workplace-related complaints. As such, the documents sought by the respondent are arguably relevant to the issues raised in the pleadings. However, with respect to the cell phone records, it appears that the time period sought by the respondent for the production of these documents is overly broad. I find the relevant period is limited to June 2009 when the applicant allegedly had conversations with the client.
8The applicant is also obliged to mitigate her damages after her dismissal from employment. Consequently, I find that all documents relating to the applicant’s job search, employment and earnings following the applicant’s dismissal are also arguably relevant and should have already been disclosed by the applicant. Since the applicant is also alleged to have had two businesses, I find that the respondent is also entitled to information with respect to income earned by these businesses to determine if the applicant earned any incremental income after her dismissal that should be allocated as mitigation. I find that it is appropriate to compare the businesses income for at least one full year prior to her termination from employment.
Order
9The Tribunal Orders that the applicant shall deliver to the respondent by November 25, 2011, copies of the following documents:
a. All documents in the applicant’s possession and/or control regarding her mitigation efforts, including correspondence (such as cover letters) with prospective employers, job advertisements to which the applicant applied or considered and records of any income earned since her dismissal (including tax returns or T4 slips for 2009, 2010 and 2011);
b. All documents with respect to the cell phone records for the number identified in the Request for the month of June 2009; and
c. All business records which indicate the income earned by the loan business and construction business for the years 2008, 2009, 2010 and 2011, including any amounts allocated to the applicant as income and/or profit and the applicant’s tax returns and any T4 slips for, 2008, 2009, 2010).
10I am not seized of this matter.
Dated at Toronto, this 31st day of October, 2011.
“Signed by”
Geneviève Debané
Vice-chair