HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Wales Applicant
-and-
Toyota Motor Manufacturing Canada Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty Date: December 28, 2011 Citation: 2011 HRTO 2305 Indexed as: Wales v. Toyota Motor Manufacturing Canada
WRITTEN SUBMISSIONS
Nicole Wales, Applicant ) On her own behalf Toyota Motor Manufacturing Canada, Respondent ) Ted J. Kovacs, Counsel
1The purpose of this Interim Decision is to determine Requests for Orders During Proceedings (“Requests”), in which the applicant seeks to amend the Application and obtain contact information for proposed witnesses as well as production of a training video.
2For the reasons that follow, the Requests are granted in part.
3The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against her in employment based on disability. The applicant also alleges reprisal or threat of reprisal.
4The applicant has filed detailed allegations in support of the Application. In essence, she argues that she raised a number of health and safety issues. She states that she was harassed by other employees because of these health and safety complaints and that she was reprised against when, shortly afterwards, her performance was reviewed and she received negative feedback. The applicant also alleges that the respondent failed to investigate her complaints of harassment and that it failed to accommodate her disability.
5The respondent has filed a Response in which it denies the allegations of discrimination. The respondent argues that the applicant’s allegations of harassment and reprisal relate to the fact that she raised safety issues and are not based on any Code-related ground.
6The applicant filed a Reply in which she states, among other things, that the alleged harassment and reprisals were based on her gender.
7The parties participated in a mediation on June 23, 2011. The mediation did not result in a settlement agreement.
8The Tribunal has issued two Interim Decisions that address other preliminary issues in this matter. In Interim Decision 2011 HRTO 2206, the Tribunal denied the applicant’s Request for interim remedy. In Interim Decision 2011 HRTO 2022, the Tribunal granted (in part) the applicant’s Request to amend the Application. It directed the respondent to file an amended Response and to produce certain documents to the applicant.
THE APPLICANT’S REQUESTS
9The applicant has filed two further Requests:
a) On November 22, 2011, she filed a Request seeking to further amend the Application to include allegations of ongoing discrimination; and
b) On December 5, 2011, she filed a Request seeking an order requiring the respondent to disclose contact information for six employees the applicant proposes to call as witnesses. She is also seeking the production of a training video.
10The respondent has responded to the Requests. In regards to the November 22, 2011 Request, the respondent does not object to the proposed amendments but asks that it have until January 13, 2011 to file a further amended Response. In regard to the December 5, 2011 Request, the respondent states that the video requested by the applicant is not arguably relevant to the proceeding. It states that there is no basis to order the disclosure of contact information for the proposed witnesses because the applicant seems to be in contact with the individuals, she has not explained what efforts she has made to attempt to obtain their contact information, and it would be inappropriate to disclose this personal information without the individuals’ consent.
REQUEST TO AMEND
11The applicant’s Request to amend the Application is granted.
12By January 13, 2012, the respondent may deliver to the applicant and file with the Tribunal an amended Reponse. Amendments to the Response may address only the amendments to the Application. This is not an opportunity to otherwise expand upon the Response;
13By January 30, 2012, the applicant may deliver to the respondent and file with the Tribunal an amended Reply. Amendments to the Reply may only address amendments to the Response. This is not an opportunity to expand upon the Application.
REQUEST FOR PRODUCTION OF A TRAINING VIDEO
14The applicant states that she is requesting a training video because it shows that bending is required to perform a quality gate job in QC paint inspection. The respondent argues that the video is not arguably relevant to the Application. It states that the quality gate job is not mentioned in the pleadings and is not one of the jobs that has been offered to the applicant, nor is it a job she has asked to be accommodated in.
15The basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. As noted in Washington v. Toronto Police Services Board, 2009 HRTO 217, this is a relatively low threshold for the requesting party to meet.
16Based on the materials filed by the parties, the training video appears to meet the low threshold of arguable relevance and should be disclosed. While the job at issue in the training video may not be mentioned in the applicant’s materials, it appears to be arguably relevant to allegations regarding the adequacy of accommodation measures.
REQUEST FOR CONTACT INFORMATION
17The applicant states that she wishes to call as witnesses a number of individuals employed by the respondent. She seeks an order requiring the respondent to disclose their contact information. Based on the applicant’s submissions, she appears to be in contact with these individuals.
18In my view, it is not necessary, at this stage of the proceedings to order disclosure of the proposed witnesses’ contact information. The applicant’s Request is denied in this regard.
19By January 13, 2012, the applicant must deliver to the respondent and file with the Tribunal a summary of the expected evidence of each of the proposed witnesses. The summary should include an explanation of why each of the proposed witnesses is expected to be of assistance to the Tribunal in its determination of the issues raised in this Application.
20By January 30, 2012, the respondent must advise the applicant and the Tribunal in writing whether it is in possession of contact information for the proposed witnesses and whether, if directed to do so by the Tribunal, it is in a position to deliver summonses to these individuals.
21Once the Tribunal has reviewed the applicant’s summaries of the expected evidence, it will provide further direction to the parties regarding these proposed witnesses.
SUMMARY
22The Application is amended. By January 13, 2012, the respondent may deliver to the applicant and file with the Tribunal an amended Response. By January 30, 2012, the applicant may deliver to the respondent and file with the Tribunal an amended Reply.
23The applicant’s Request for disclosure of a training video is granted. In complying with its disclosure obligations under Rule 16 of the Tribunal’s Rules of Procedure, the respondent will deliver to the applicant and file with the Tribunal copies of the training video.
24The applicant’s Request for an order directing the respondent to disclose contact information of proposed witnesses is denied at this stage of the proceeding. By January 13, 2012, the applicant must deliver to the respondent and file with the Tribunal a summary of the expected evidence of these proposed witnesses. By January 30, 2012, the respondent must advise the applicant and the Tribunal whether it is in possession of contact information for the proposed witnesses and whether, if directed to do so by the Tribunal, it is in a position to deliver summonses to these individuals.
25The Tribunal will provide further direction to the parties once it has reviewed the applicant’s summaries of expected evidence.
26I am not seized of this matter.
Dated at Toronto, this 28th day of December, 2011.
”signed by”_____________
Michelle Flaherty Vice-chair