Susy D’Agostino v. Appleby College, 2011 HRTO 297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susy D’Agostino

Applicant

-and-

Appleby College

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: February 11, 2011

Citation: 2011 HRTO 297

Indexed as: D’Agostino v. Appleby College

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in employment on the basis of sex (pregnancy).

2This Application has been scheduled for a hearing on February 17 and 18, 2011. The applicant filed a Request for an Order During Proceedings on December 16, 2010 for the production of documents. On February 4, 2011, the respondent filed its Response to the Request and attached documents that the applicant had sought. On February 10, 2011, the applicant wrote to the Tribunal that the respondent’s production was insufficient.

DOCUMENTS RELATING TO THE APPLICANT

3With respect to the applicant’s request for “copies of any and all notes and correspondences… sent or received by the Respondent in relation to the Applicant over the course of her employment…,” the respondent’s counsel confirmed that “there are no other documents” in addition to those already delivered to the applicant and filed with the Tribunal. The applicant, however, is not satisfied that the twelve e-mail correspondences produced are complete. The applicant suspects that there should be more e-mails because of her understanding that internal communication amongst the respondent’s employees is by way of e-mail. She therefore asks the Tribunal to order the respondent to confirm in writing what efforts were taken to ensure that all documents with respect to this part of her Request were retrieved and produced.

4I deny this Request because there is no basis, on the material before me, for concluding that any specific document that is arguably relevant to the issues in the Application has been withheld by the respondent. The applicant has suspicions about the possible existence of other documents, but her suspicion alone is not a sufficient basis for a Tribunal order. The applicant may explore this issue through evidence given at the hearing and seek the Tribunal’s direction if further information becomes available there.

DOCUMENTS RELATING TO THE HIRING AND FIRING OF EMPLOYEES IN THE ADVANCEMENT, ADMISSIONS AND ADMINISTRATION DEPARTMENTS

5The applicant Request seeks notes and correspondence in relation to the respondent’s decision to create the position of Admissions Service Co-ordinator and to place Ms. Crosby in that position. It is not clear from the Response to the Request whether counsel for the respondent is confirming that there are no documents other than what the respondent provided in its Response to the Request and in the respondent’s previously filed documents. The applicant takes the position that the respondent has not produced all arguably relevant documents as requested. The applicant clarifies that she also seeks copies of all documentation relating to the decision to establish the position of Admissions Counsellor, Community Outreach and to the recruitment process generally, and copies of documents relating to the decision to place Ms. English in the position instead of the applicant. The applicant further clarifies that the documents produced in relation to Ms. Crosby are deficient because her personnel file was not included in the respondent’s disclosure, nor were any electronic communications pertaining to her recruitment and employment provided.

6I agree with the applicant that such documents, if they exist, would be arguably relevant. Counsel for the respondent is therefore ordered to deliver any such documents to the applicant and file them with the Tribunal or provide confirmation that none exist to the applicant by February 15, 2011.

INFORMATION ABOUT THE REDISTRIBUTION OF THE APPLICANT’S DUTIES

7Counsel for the applicant requests from the respondent a summary of when and to whom each of the applicant’s duties and responsibilities were redistributed. This has not been provided by the respondent, but I see no necessity to order such a summary given that the respondent’s witnesses may be cross-examined in the event the applicant does not find their testimony with respect to the applicant’s position satisfactory.

8The Tribunal declines to order that the respondent provide the requested summary.

9I am seized.