Candyce Elioff v. Aquarian Chemicals and Mauro Cesa, 2012 HRTO 1161

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Candyce Elioff Applicant

-and-

Aquarian Chemicals and Mauro Cesa Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: June 13, 2012 Citation: 2012 HRTO 1161 Indexed as: Elioff v. Aquarian Chemicals

APPEARANCES

Candyce Elioff, Applicant Geri Sanson, Counsel

Aquarian Chemicals and Maura Cesa, Respondents Frank Zambosco, Counsel

Introduction

1This Application was filed under section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code"), alleging discrimination with respect to employment because of sex, including sexual harassment, sexual solicitation, and reprisal. The applicant was self-represented at the time of filing her Application, but is now represented by counsel.

2The hearing is scheduled to commence on June 18 and 19, 2012.

3The parties filed various Requests for Orders During Proceedings ("RFOP") and a teleconference call to address these issues was held on May 24, 2012 ("the call"). During the call, it became apparent that the applicant's counsel did not have a copy of what the applicant had filed with the Tribunal when she filed her Application. Accordingly, the Tribunal had the material that the applicant filed with the Tribunal sent to the parties and provided the parties with the opportunity to make further submissions subsequent to the call. The parties filed additional submissions, with the applicant filing additional submissions on June 1 and the respondents filing submissions additional submissions on June 6. All of the parties' submissions has been considered in issuing this Interim Decision, which, in the interests of being issued before the hearing commences, will contain bottom-line decisions on the outstanding issues. More detailed reasons will be contained, if necessary, in any ultimate decision that is issued on the merits of the Application.

4At the commencement of the hearing, the Tribunal requests that the parties be prepared to address whether or not the hearing should be bifurcated on remedies, in the event that the Application is successful. Further, in the event that the parties are agreeable to mediation-adjudication, they are to advise each other and the Tribunal, but email, by no later than Friday, June 15, 2012, at 12:00 p.m.

APPLICANT'S REQUEST TO AMEND THE REMEDIES BEING SOUGHT IN HER APPLICATION

5The applicant is permitted to amend her Application to include the remedies as set out in her RFOP dated April 25, 2012. Of course, being permitted to amend the remedies does not mean that the applicant will necessarily receive those remedies in the event that her Application is successful. Of note is the claim for "mental distress damages". In 2008, when the Code was amended, the remedy of $10,000 for mental anguish was removed from the Code. Since then, the Tribunal's merits decisions pertaining to section 34 of the Code have considered the "mental distress" effects, if any, when awarding remedies under section 45.2(1) 1.

DR. SHENOUDA TESTIFYING

6In the circumstances of this case, the Tribunal directs that Dr. Shenouda be available to testify in-person. The applicant should attend the hearing with Dr. Shenouda's availability so that arrangements can be made, as much as possible, to have Dr. Shenouda testify without disruption to her medical practice.

REMOVAL OF PRIVILEGED DOCUMENTATION FROM THE RESPONDENTS' PRODUCTIONS

7Based upon the case that the parties have referred to the Tribunal, Hallman Estate (Re), 2009 CanLII 49643 (ON S.C.), the Tribunal determines that the letter contained at Tab 8 of the respondents' productions, June 8, 2010 letter from Carol Elizabeth Boire to the respondents ("the Boire letter"), and the letter contained at Tab 9 of the respondents' productions, June 25, 2010 letter from Frank Zambosco to Ms. Boire, are privileged and cannot be referred to in this proceeding. I accept the applicant's submissions that she has not waived privilege over these letters. Further, I note that for the applicant to testify about the contents of the Boire letter, would require her to disclose solicitor-client communications, which are also privileged.

EVALUATION OF EMPLOYEE BENEFITS

8At this time, it is premature to determine whether or not there has been a loss of employee benefits to the applicant and accordingly I do not award any evaluation to the costs of the employee benefits to be conducted.

9As the Tribunal is seeking the parties' submissions on whether the hearing should be bifurcated with respect to remedies, this issue need not yet be determined by the Tribunal.

PRODUCTION OF THE APPLICANT'S MEDICAL DOCUMENTATION

10The applicant has put her medical condition into play in this proceeding. She seeks remedies for "mental distress" and she states, in her Application, that she experienced medical symptoms "do [sic] to all the stress" from work and from other issues that were occurring in her life. She alleges that she sought medical attention from Dr. Shenouda as a result of the alleged harassment and other issues going on in the applicant's life. She alleges "This work environment has been very unhealthy for atleast [sic] the past 2 to 3 years. I was having issues at home …. and everything was too much" and that Dr. Shenouda diagnosed some of her medical conditions as "stress related, mostly from work". She describes in her Application that Dr. Shenouda "offered to give her a leave of absence note", which the applicant declined, and was put on Cypralex for a period of time. Towards the end of her Application, the applicant alleges that "she [Dr. Shenouda] again gave me a note for sick leave", but the applicant did not use it.

11The applicant has produced some medical documentation including letters from July 2006, October 2006, what appear to be clinical notes from July 2008 to June 2011, radiology reports from March 2009 and November 2009 and a letter, dated December 15, 2010, from Dr. Shenouda. This documentation was produced based upon her counsel's assessment of what was relevant. The December 2010 letter makes reference to the applicant's medical condition "directly related to domestic as well as work related stressors".

12The test for production of documents is "arguable relevance". See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1. Being required to produce arguably relevant documents does not necessarily mean that they will be admitted during the hearing. As the applicant has placed her medical condition into play, I do not find that the respondents' request for production of her medical documentation to be a "fishing expedition". The applicant was required to identify to the respondents copies of all relevant documents and identify those documents over which she is seeking privilege (See Rule 16.1). The Tribunal has no information as to whether or not the applicant has done this. She has produced some medical documents, based upon her counsel's assessment of what is relevant. An applicant cannot produce only those portions of medical record that she deems relevant. See Guthrie v. Upper Grand District School Board, 2011 HRTO 1605, at para. 24.

13The applicant worked for the corporate respondent from October 2001 until May 2010. She has alleged, in her Application, sexual harassment commencing six months to one year after she commenced working with the corporate respondent. She herself has produced medical documentation from 2006, July 2008 to June 2011, March 2009 and November 2009. She alleges that Dr. Shenouda gave her a note for sick leave, but this does not appear to have been produced.

14The applicant is directed to produce to the respondents' counsel, forthwith, medical documentation from July 2006, the date of the first medical report that she has reported, to the end of the period for which she is seeking "mental distress damages". I decline the applicant's suggestion that the medical documentation be submitted to the Tribunal to determine whether or not it is relevant rather than being produced to the respondents' counsel.

15If the applicant intends to testify about allegations which pre-date July 2006 and the impact that such alleged conduct has had on her, then the applicant is also required to produce medical documentation for this period.

16In the event that the applicant attempts to testify about the emotional or psychological effects of the alleged harassment and discrimination for any period of time that medical documentation has not been produced, then the Tribunal will hear the parties' submissions on whether the applicant can testify about allegations and their impact and/or whether further medical documentation ought to be produced.

17Of course, any medical documentation upon which the applicant is relying at the hearing should be delivered to the respondents and filed with the Tribunal forthwith.

OTHER ISSUES

18In their submissions following the call, the respondents request particulars of the date, time and extent of the applicant's house fire in 2011. That seems, to the Tribunal, to be an issue on which the applicant can be cross-examined.

19The respondents also request production of copies of all of the applicant's résumés, noting that document 2 of the applicant's documents is a curriculum vitae of the applicant at Tab 3 containing a date of January 2012. Since the applicant's Application has been amended to include a remedy for loss of wages, the applicant should ensure that she has delivered copies of all relevant documentation pertaining to this remedy to the respondents and the Tribunal.

20The Tribunal notes that apart from documents that were filed with the Tribunal pursuant to the applicant's May 15, 2012 letter, the Tribunal does not have a copy of the documents upon which the applicant will be relying and her witness statements. This is despite issuing a Case Assessment Direction dated May 18, 2012 requiring the applicant to deliver such items immediately to the respondents and the Tribunal. Further, while the applicant has identified Dr. Sandy Welsh and Dr. Shenouda at para. 35 of her June 1 submissions, the Tribunal has not received their witness statements. Accordingly, the applicant is directed to deliver this material forthwith to the Tribunal as well as the respondents in the event that the respondents have not previously been sent this material.

21Finally, the parties should be prepared to discuss, at the commencement of the hearing, what witnesses will be called and the order of those witnesses. Given the amount of anticipated evidence from the applicant, instead of having all their witnesses present at the commencement of the hearing, the parties should give some thought to having their witnesses on stand by.

ORDER

22The following is ordered by the Tribunal:

1. The Application is amended to reflect the remedies requested in the applicant's RFOP dated April 25, 2012;
2. Dr. Shenouda is required to testify in-person;
3. Ms. Boire's June 8, 2010 letter and Mr. Zambosco's June 25, 2010 letter are privileged and cannot be referred to in this hearing;
4. The Tribunal has not made any determination about how the employee benefits are to be evaluated;
5. The applicant is required to produce forthwith, to the respondents' counsel, medical documentation from July 2006 to the end of the period for which the applicant is seeking "mental distress damages".
6. The applicant is directed to produce copies of all relevant documentation pertaining to her loss of wages remedy; and
7. The applicant is directed, again, to file with the Tribunal (and to the respondents in the event that they have not previously received them) copies of the documentation upon which she intends to rely and witness statements, except for those produced in her May 15, 2012 correspondence to the Tribunal.