Cann v. Rona Ontario, 2012 HRTO 112

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Cann Applicant

• and-

Rona Ontario Inc., Rona Inc., and Noble Trade Inc. Respondents

INTERIM decision

Adjudicator: Ian R. Mackenzie Date: January 17, 2012 Citation: 2012 HRTO 112 Indexed as: Cann v. Rona Ontario

WRITTEN SUBMISSIONS

Jonathan Cann, Applicant (Self-represented) Rona Ontario Inc., Rona Inc., and Noble Trade Inc., Respondents (Sonia Regenbogen, Counsel)

1Jonathan Cann has filed two Applications (one in 2009 and the other in 2010) against his former employer 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 disability, family status, marital status and reprisal. In an earlier decision (2011 HRTO 163) the 2009 Application was amended to include sex as an alleged ground of discrimination.

2This Decision addresses a Request for an Order during Proceeding ("RFOP") filed by the applicant. He is requesting further disclosure from the respondents.

3Prior to the Notice of Hearing of these applications, the applicant filed an RFOP for extensive disclosure of documents and for the anonymization of the proceeding. In a decision issued on July 6, 2011 (2011 HRTO 1298), the Tribunal denied the Request for anonymization and determined that the Request for disclosure was premature. The disclosure Request was determined to be premature because the disclosure requirements set out in Rules 16 and 17 of the Tribunal's Rules of Procedure had not yet been triggered. The decision stated that if, after receiving the respondents' disclosure of arguably relevant documents, documents on which they intend to rely on at the hearing, and witness lists, the applicant remained concerned that documents were missing, he could seek production at that stage.

4In accordance with the Tribunal's Rules, the deadline for production of arguably relevant documents was August 12, 2011.

5On September 29, 2011, the applicant filed an RFOP for disclosure of documents that was identical to the earlier RFOP. In his RFOP he also repeated his Request for anonymization. In subsequent correspondence he agreed that the anonymization Request had been addressed in the earlier decision and he was not pursuing this part of his RFOP.

6The respondents provided arguably relevant documents to the applicant on November 23, 2011. The applicant has not yet provided a list of arguably relevant documents and a copy of each document to the respondents.

Background

7The applicant was employed as a Human Resources Advisor with RONA for two of its stores in Brampton from November 19, 2007 until his employment was terminated on July 20, 2009. His first Application alleges that his termination of employment was discriminatory and a reprisal. In 2010, he filed an Application alleging that he was discriminated against on the basis of disability and faced reprisal as a result of unsuccessful attempts to obtain re-employment with RONA.

8In his first Application, the applicant alleges that his employment was terminated after he had requested accommodation for disabilities. He also alleges that his employment was terminated a number of weeks after he advised his employer that his wife was pregnant. He has also alleged that other employees with less seniority than him were not dismissed.

9In his second Application, the applicant alleges that he was not selected for interviews for positions with the respondents that he applied for. He alleges that he was not offered interviews because of his disabilities and as a reprisal for filing his Application in 2009. He states that he is fully qualified and experienced and there is no other reason for not being selected for an interview.

Documents requested and submissions of applicant

10The applicant has requested extensive disclosure of the employment files of 17 current and former RONA employees. It is his position that there is a nexus between the information sought and the issues in dispute in the Application. He submitted that since the respondents have alleged that the termination of his employment was due to a restructuring of operations, he is entitled to challenge that response and will require the requested documentation to do so. It is also his position that the documentation used to "assess the merits" of employees that the applicant was rated against are clearly relevant. He submitted that these documents will be the means by which he will establish a prima facie case of discrimination.

11The applicant also requested residential address information for a number of employees as well as travel records in order to determine commuting distances. He submitted that this information would be used to prove differential treatment because the respondents refused to allow him equal commuting distance to other employees.

12The applicant submitted that the information contained in the employees' files would assist him in proving that he experienced discrimination and differential treatment with respect to seniority; dates of hire; hours of service; work performance; experience; sex; family status; and parental leave compared to other employees.

13The applicant also sought employee files of named individuals in order to determine the dates of workers' compensation and disability claims, dates that they were off work, and dates of return to work. He submitted that having this information would assist him in "better" specifying the dates of events involving Ms. Richardson and himself. The applicant also submitted that this information would assist the applicant in showing discrimination and inflammatory remarks made by Ms. Richardson and demonstrating a poisoned work environment.

14The applicant also sought disclosure of the employee file of all persons who were hired, interviewed, or considered for the positions of HR Advisor, HR Generalist, or similar positions with the respondents between July 20, 2009 and September 9, 2010. He submitted that this information would assist him in proving that he experienced discrimination and differential treatment with respect to seniority; dates of hire; hours of service; work performance; experience; and knowledge of company systems, policies and procedures.

15The applicant requested the investigation notes related to the applicant's 2009 Application.

16The applicant also requested documents relating to disciplinary actions or investigations relating to complaints or incidents of discrimination against named management representatives.

17The applicant requested that the respondents provide "will say" statements for its witnesses and current human rights training manuals.

18The applicant also requested "logs" of calls from the applicant to Ms. Richardson and recordings of those calls.

19The applicant also requested the notes and notebooks of staff of the respondents "that ever dealt with the applicant from July 22, 2008 to September 09, 2009".

Submissions of the respondents

20The respondents stated that the documents requested by the applicant are not arguably relevant. In the alternative, they submit that much of the documentation requested is personal information that should not be disclosed for policy reasons.

21The respondents submitted the applicant has the onus of demonstrating a nexus between the information or document sought and issues in dispute. See Lampi v. Princess House Products Canada, 2008 HRTO 333, paras. 8 and 9. If that nexus is not established, the Tribunal should refuse to grant the Request. The disclosure process should not be used as a fishing expedition.

22The respondents stated that the applicant was terminated on a without cause basis because of a restructuring decision. RONA is a non-unionized environment and does not have a policy of employee seniority that incorporates bumping rights or the right to displace another employee from the employee's position. As a result, the employee files of human resource specialists at locations across the province of Ontario are irrelevant to the issue of whether the decision to terminate the applicant's employment was made for discriminatory reasons.

23The respondents submitted that the applicant has not alleged that he received discriminatory treatment with respect to his compensation. As a result, he has failed to establish that pay and bonus information is arguably relevant to the issues in dispute.

24The respondents submitted that the residential addresses of employees and travel-related information are not relevant to the issues in dispute. Whether or not other employees commuted to their respective jobs is immaterial; the fact remains that there were no appropriate positions open for the applicant at the time the decision was made to terminate his employment on a without cause basis.

25The respondents argued that the information requested by the applicant relating to parental, maternity (pregnancy), and sick leaves of absence for the employees is not arguably relevant. There are no allegations that the applicant received differential treatment as compared to other employees with respect to sex, family status, or parental leave.

26The respondents submitted that the Request for information relating to individuals hired, interviewed or considered for positions between July 20, 2009 and September 9, 2010 is overly broad and will necessarily result in the disclosure of irrelevant personal information. The applicant only applied for and was only considered for two positions: one posted on or about May 19, 2010, and the other on or about June 14, 2010. As a result, the scope of the Request is overly broad and does not disclose a sufficient nexus to the issues raised. The applicant has also not provided a geographic scope for his Request. The applicant has not discharged his burden to prove that the requested information is arguably relevant.

27The respondents submitted that the Request for information relating to disability claims and communications is irrelevant to the issues contained in the Applications. This information is also highly confidential and production would seriously affect privacy rights. The stated reason for disclosure to obtain a proper timeline of events is irrelevant to the Application. Ms. Richardson's communications relating to these claims are irrelevant to any allegation of discrimination in the Application. In addition, there is no allegation that Ms. Richardson discussed the applicant in any of these communications. The applicant has failed to establish how such communications are relevant to the issues raised by the Applications.

28The respondents stated that RONA would disclose relevant human rights policies and materials in accordance with its disclosure requirements under the Tribunal's Rules.

29The respondents stated that the applicant sent an email on July 21, 2009 alleging discrimination and later in the day served a Statement of Claim alleging wrongful dismissal. The respondents stated that there are no investigation notes related to the applicant's initial complaint. In any event, the respondent submits that any notes created in response to the Applicant's correspondence would be protected by litigation privilege.

30The respondents submitted that the applicant has not provided a basis for his assertion that the records of disciplinary action, investigations, or complaints of discrimination of the named managers are relevant to the Application. The Tribunal has previously held that the entire personnel record of a respondent is not arguably relevant simply because the respondent is alleged to have acted in a discriminatory manner. See Berisa v. Toronto (City), 2008 HRTO 246 at para. 48.

31The respondents submitted that the applicant has not provided any basis for his statement that the logs and recordings of the calls made by the applicant to Ms. Richardson are arguably relevant. The respondent is not aware of any such documents or recordings.

32The respondents submitted that the applicant's Request for notes of staff who dealt with the applicant is overbroad and that no nexus to the Application has been established.

Analysis and Decision

33The test for "arguably relevant" disclosure is not a particularly high bar. However, there must be some relevance to the requested disclosure and the party seeking production must show a nexus between the disclosure sought and the issues in dispute. See Lampi v. Princess House Products Canada, 2008 HRTO 333.

34The applicant is alleging that his employment was terminated because of disabilities, because he told his employer his wife was pregnant, and because of a reprisal. He is also alleging that he was not selected for interviews for positions he subsequently applied for and that this was because of his disabilities and reprisal.

35The applicant is entitled to some information about similarly-situated employees of RONA. However, the disclosure requested by the applicant is over-broad.

36The applicant suggests that the requested documents will show that he was as qualified for his position as other employees with less years of service. Accordingly, the disclosure of information about other employees will be limited to those employees with the same or fewer years of service to the applicant. The arguably relevant documents are limited to documents relating to their work experience and job performance. The Request for disclosure relating to commuting distances is not relevant. Differential treatment on the basis of commuting distance, if proven, is not relevant to the Application since the applicant has not demonstrated a nexus between such treatment and a prohibited ground of discrimination.

37The applicant is alleging that he was not selected for interviews with the respondents. Information about those individuals selected for interviews is arguably relevant. The arguably relevant information is the application itself and any attachments (such as a curriculum vitae or covering letter). Personal information such as name, address, and any other identifier (e.g., social insurance number) are not arguably relevant and should be removed from the disclosed documents. However, the disclosure is limited to the positions applied for by the applicant: the positions posted on or about May 19 and June 14, 2010.

38The rationale for the Request for information on disability claims of other individuals is not sufficient to justify disclosure. The timelines for the incidents relied upon by the applicant will not be clarified by the disclosure of this information. Even if timelines could be clarified by the disclosure of personal information, there are less intrusive means for the applicant to determine the timelines.

39The personnel records of managers, including information about possible past human rights violations, are not arguably relevant. The Tribunal has previously held that the entire personnel of a respondent is not arguably relevant simply because the respondent is alleged to have acted in a discriminatory manner. See Berisa v. Toronto (City) at para. 48. The applicant has not established a nexus between the requested documents and his Application.

40Recordings or logs of telephone calls between the applicant and Ms. Richardson related to his employment are arguably relevant. The respondent states that it is not aware of any recordings. Any notes taken of conversations between the applicant and Ms. Richardson are arguably relevant and ought to be disclosed. If they exist and have not already been disclosed by the respondents, they are ordered to be disclosed to the applicant.

41The respondents have stated that there are no investigation notes related to the Application filed in 2009. Accordingly, I do not need to address the issue of litigation privilege raised by the respondents.

42I agree that the Request for all notes taken by staff of the respondent that "deal with" the applicant is overbroad. However, notes taken with regards to the termination of his employment, his disabilities, and his wife's pregnancy are arguably relevant and should be disclosed, if they have not already been disclosed.

43The Request that the respondents provide a list of witnesses and a summary of their intended evidence was premature at the time that the RFOP was filed. The deadline for providing this information was December 28, 2011. The matter of disclosure requirements under the Tribunal's Rules are best left to the adjudicator assigned to hear the Application.

44The respondents have agreed to disclose copies of all human rights policies and materials. The disclosure of arguably relevant documents occurred after the filing of the RFOP. It is assumed that relevant human rights materials were disclosed to the applicant. If the human rights policies and materials have not been disclosed, the applicant can make a further RFOP to compel disclosure.

45The Tribunal orders:

a. The disclosure of documents relating to the work experience and job performance of employees listed in the RFOP with the same or fewer years of service than the applicant who were not terminated;

b. The disclosure of applications, and any attachments to those applications, with all personal information redacted for the positions posted on or about May 19 and June 14, 2010;

c. The disclosure of notes of any conversations between the applicant and Ms. Richardson relating to allegations in the Applications, if those notes exist and have not already been disclosed;

d. The disclosure of notes of staff related to the allegations in the Applications, if those notes exist and have not already been disclose; and

e. The remaining disclosure Requests are dismissed.

46I am not seized.

Dated at Toronto, this 17th day of January, 2012.

"signed by"________________

Ian R. Mackenzie Vice-chair