HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruth Ann Lusk
Applicant
-and-
Mulcaster Mews Inc.
Respondent
Interim Decision
Adjudicator: David Muir
Indexed as: Lusk v. Mulcaster Mews Inc.
1This is an Application made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated September 3, 2010. The hearing in this matter has been scheduled for January 26 and 27, 2012. In accordance with Rule 16.1 of the Tribunal’s Rules of Procedure and as specified in the Notice of Confirmation of Hearing dated July 19, 2011, each party was required to provide the other party, by August 9, 2011, their list of all arguably relevant documents in their possession, and copies of each document contained on the list, excluding any documents for which privilege is claimed.
2This Decision deals with the applicant’s Request for Order During Proceeding (“Request”) regarding disclosure of certain documents from the respondent.
3The applicant alleges in her Application that her right to be free of discrimination in employment on the basis of disability has been infringed by the respondent. In the Request delivered and filed on or about October 25, 2011, the applicant seeks the production of a number of documents as follows:
a. Minutes of a meeting with M.R., B.C. and applicant on May 20, 2009,
b. Letter with restrictions to working nights only,
c. Copy of warnings the applicant was supposed to have been provided,
d. Copy of incidents from past employment,
e. Copy of work schedules where the applicant worked nights,
f. Copy of work schedule for the last weeks of April, 2009,
g. Copy of Policy and Procedures for Unregulated Care Providers,
h. Copy of Mandate from ORCA – Training for Unregulated Care Providers.
4The applicant also requests correspondence sent by the respondent to the Tribunal but which was not copied to the applicant. Consistent with the Tribunal’s normal practice it wrote to the respondent and advised that if the respondent wanted the correspondence and attached documents to be retained on the file the respondent must provide a copy to the applicant. Apparently this has not yet occurred.
5The applicant states that these documents are important to her case and she cannot proceed without them. The applicant does not articulate why these documents are important to her case. Their descriptions are cryptic and incomplete. For example, the documents described in paragraphs 3(a) and (f) of this Interim Decision are inferred from the materials filed by the parties, including the Forms 1 and 2. The respondent, although afforded an opportunity to do so, has not responded to the Request.
6Having regard to the issues raised in this case, I am satisfied, despite the very limited submissions of the applicant, that the documents described in paragraph 3 of this Interim Decision, except for 3(b), are arguably relevant to the issues in dispute. The applicant alleges that the employer failed to accommodate an alleged disability by refusing to assign her day and evening shifts. The respondent states that because the applicant was an Unregulated Care Provider (UCP) it could not assign her to day or evening shifts. It also denies that the applicant ever advised that she was a person with a disability and in need of that accommodation. The documents in the cited paragraphs appear to relate to these issues.
7I am not satisfied at this time that the document described in paragraph 3 (b) is arguably relevant as I am unable to be certain what is being described and how it might relate to the issues in dispute. It is not appropriate to order the production of a document the identity of which has not been clearly articulated.
Order
8The Tribunal orders as follows:.
a. By December 14, 2011, the respondent will deliver to the applicant and file with the Tribunal the documents described in paragraphs 3 (a), (c),, (d), (e), (f), (g) and (h) if they exist and are in the possession and control of the respondent and any other documents upon which the respondent intends to rely at the hearing.
b. Notwithstanding any other prior Direction the applicant will deliver to the respondents and file with the Tribunal any documents upon which she intends to rely at the hearing by December 20, 2011.
9I am not seized.
Dated at Toronto, this 30th day of November, 2011.
“Signed by”
David Muir
Vice-chair