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Kathy Wilkes v. Just Energy Corp., 2011 HRTO 349 — HRTO | minicounsel | minicounsel

February 17, 2011

Kathy Wilkes v. Just Energy Corp., 2011 HRTO 349

Case Summary

The respondent in a human rights application filed a Request for Order seeking production of the applicant's income tax returns and documents related to her search for other employment. The applicant did not file a response. The Tribunal ordered the applicant to produce the requested documents, finding them arguably relevant to her claim for lost wages and mitigation of damages, unless she chooses to restrict the period for which she is seeking compensation.

Human Rights Tribunal of Ontario

B E T W E E N:

Kathy Wilkes

Applicant

-and-

Just Energy Corp.

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 17, 2011

Citation: 2011 HRTO 349

Indexed as: Wilkes v. Just Energy

[1] This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code) dated June 26, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on October 26, 2006.

[2] The purpose of this Interim Decision is to address the Request for Order filed by the respondent seeking production of certain documents relating to the remedies sought by the applicant.

[3] The statement of delivery filed with the Request for Order indicates that the Request was served on applicant’s counsel by fax on January 28, 2011, which pursuant to the Rules is the effective date of service. In accordance with the Tribunal’s Rules for Transitional Applications and as stated on the front page of the Request for Order, a Response to Request for Order is to be filed with 14 days, which expired on February 11, 2011. To the date of this Decision, no Response has been filed by the applicant. As the time for delivery of a Response has expired, I will proceed to deal with the respondent’s Request in the absence of a Response.

[4] The respondent first seeks production of the applicant’s income tax returns for the calendar years 2006, 2007, 2008, 2009 and 2010. The remedy sought by the applicant includes “compensation for all lost wages arising from her loss of employment” but does not specify the period for which lost wages are being sought. In the absence of any restriction placed on the period for which lost wages are being sought, I agree with the respondent that the income tax returns sought are arguably relevant and I order that these documents must be produced by the applicant. If the applicant chooses to restrict the period for which she is seeking compensation for lost wages, then she may so indicate in writing to the Tribunal and the respondent and may only produce income tax returns for those years for which she is seeking to be compensated.

[5] The respondent further seeks production of any and all documentation with respect to the applicant’s search for other employment since the cessation of her employment with the respondent, including but not limited to all notes, letters of application, and in particular all records of employment held since the date of her cessation of employment with the respondent, including any and all employment contracts and contracts with all entities, whether for employment or self-employment. Once again, these documents clearly are arguably relevant to the remedy sought by the applicant and the extent to which she mitigated or made reasonable efforts to mitigate her losses, and I order them to be produced. As with the income tax returns, if the applicant chooses to restrict the period for which she is seeking compensation for lost wages, then she may so indicate in writing to the Tribunal and the respondent and may only produce documents relating to the period for which she is seeking to be compensated.

[6] The documents that I have ordered to be produced in this Decision shall be provided to the respondent within 14 calendar days of the date of this Decision.

[7] Finally, I note from the applicant’s statement of additional facts that the applicant has requested that a summons be issued requiring the attendance of Ms. Fil San Pedro to testify at the hearing in this matter. Within 14 calendar days of this Decision, the respondent shall advise the applicant whether it intends to call Ms. San Pedro as a witness in this proceeding, and if not, to provide an address where Ms. San Pedro may be served if she still works for the respondent or to provide her last known address if she no longer works for the respondent. If the applicant intends to call Ms. San Pedro as a witness at the hearing, it is her responsibility to ensure service upon her of a summons together with the appropriate conduct money. A summons may be obtained from the Tribunal by contacting the Registrar-Transition.

Dated at Toronto, this 17^th day of February, 2011.

“Signed By”

Mark Hart

Vice-chair