Antoinette Henry v. The Regional Municipality of Waterloo, 2012 HRTO 1355

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antoinette Henry

Applicant

-and-

The Regional Municipality of Waterloo

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: July 9, 2012

Citation: 2012 HRTO 1355

Indexed as: Henry v. The Regional Municipality of Waterloo

WRITTEN SUBMISSIONS

Antoinette Henry, Applicant

Beth Symes, Counsel

The Regional Municipality of Waterloo, Respondent

Donald Jarvis, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondent has discriminated in employment based on race, colour, ancestry and ethnic origin.

2By Interim Decision dated October 26, 2011 (2011 HRTO 1927), I denied the respondent’s Requests to dismiss, and granted the respondent’s Request for particulars. I found that the allegations in this Application are within the time limit set out in s.34. In respect of allegations concerning job competitions from 1992 to 2006, I directed the applicant to disclose in writing to the respondent and file with the Tribunal the descriptions and approximate dates of all job competitions between 1992 and 2006 that are relevant to her allegation. She did so on November 18, 2011. With respect to one allegation concerning a job competition in 1991, the respondent had argued that it would be prejudiced in responding, as job competition files from 1991 were destroyed in 1995, and the employee who investigated the applicant’s allegation of racial discrimination at that time is no longer employed with the respondent. In view of the fact that the respondent had not asserted that all records relating to the 1991 competition had been destroyed, or that the employee who investigated could not be found, I did not dismiss the 1991 allegation, but this was without prejudice to the respondent’s right to raise the issue at a hearing on the merits of the Application (2011 HRTO 1927, paras. 17 and 18).

3The applicant filed a Request for an Order During Proceedings (“Request”) on June 6, 2012. The applicant has stated that with the exception of one competition (2003 – 657), the respondent has failed to provide documents relating to job competitions prior to June 2008. The applicant requested production by letter of April 30, 2012, but has received no response.

4The respondent responded to the applicant’s Request. The respondent stated that it should not be put to the time and expense of producing what is likely in the range of more than 2000 additional documents. In the respondent's submission ”the allegations regarding those job competitions should be dismissed as improper extensions of the application and/or because there is no reasonable prospect for the application to succeed in respect of them and/or there is no prima facie case”. Respondent also indicates that “the Tribunal has previously ordered that those preliminary objections be dealt with at the commencement of the hearing scheduled for November 2012.”

5The respondent appears to have conflated the ruling in 2011 HRTO 1927, in respect of documents from two different time periods. Paragraph 18 of that Interim Decision states that the allegation from 1991 would not be dismissed as of the date of the Interim Decision, “without prejudice to the respondent’s right to raise the issue at a hearing on the merits of the Application”.

6In respect of the allegations concerning job competitions from 1992 to 2006, the respondent’s Requests to dismiss these allegations as untimely, insufficiently particularized or disclosing no prima facie case of discrimination were dismissed at para. 23 of 2011 HRTO 1927. Accordingly, these allegations will be dealt with at the hearing on the merits. The respondent must disclose documents that are arguably relevant to these allegations.

7The date for disclosure of arguably relevant documents in this matter, including those in respect of competitions between 1992 and 2006 that were identified by the applicant as relevant to her allegations, was April 11, 2012. The respondent is ordered to disclose these documents, as well as any it has located that are arguably relevant to the competition in 1991, within three weeks of the date of this Interim Decision.

8The respondent has requested in the alternative that it be allowed an opportunity to make oral submissions concerning its response to the applicant's Request. However, in view of the fact that a previous request of the respondent that the Tribunal dismiss the allegations concerning job competitions between 1991 and 2006 was itself dismissed on October 26, 2011 by Interim Decision 2011 HRTO 1927, it would not be fair to allow the respondent to relitigate this issue.

ORDER

9The respondent is ordered to disclose and file with the Tribunal any documents that are arguably relevant to the competitions between 1992 and 2006 that were identified by the applicant as relevant to her allegations. It is also ordered to disclose any documents that it has located that are arguably relevant to the competition in 1991 referred to in the Application. Disclosure must be done within three weeks of the date of this Interim Decision.