Asfia Sultan v. Her Majesty in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, 2012 HRTO 1631

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asfia Sultan

Applicant

-and-

Her Majesty in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: August 27, 2012

Citation: 2012 HRTO 1631

Indexed as: Sultan v. Ontario (Community Safety and Correctional Services

WRITTEN SUBMISSIONS

Asfia Sultan, Applicant

Janice Payne and Denise Workun, Counsel

Her Majesty in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Respondent

Roslyn Baichoo, Counsel

1This is 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”), alleging discrimination with respect to employment because of race, ethnic origin and creed.

2The applicant self-identifies as a practising Muslim of Southeast Asian origin and Pakistani race and was employed as a Superintendent with the respondent. The applicant alleges that she was terminated from her employment because of her race, ethnic origin and creed and because she raised concerns of a systemic nature about the treatment of Muslims by the respondent in both detention and employment.

3This Interim Decision addresses the Request by the applicant for production of various documents from the respondents.

4The standard for disclosure in a human rights proceeding is “arguable relevance”. The party seeking the disclosure must demonstrate a nexus between the information or document sought and the issues in dispute: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry), at para. 38. In other words, the applicant must demonstrate that the documents may prove or disprove a fact in issue in the dispute.

5The issues in dispute are the circumstances associated with the decision to terminate the applicant’s employment and whether or not they are linked to the applicant’s race, ethnic origin or creed and/or her advocacy in relation to issues. The respondent alleges that the applicant was terminated without cause because the respondent did not have confidence in her ability to effectively lead the organization through the changes necessary to meet its organizational mandate. The respondent also terminated the Deputy Superintendent at the same time, noting that this person did not share the personal characteristics of the applicant which are alleged to be factors in her termination. The applicant alleges that the reasons for her termination are pretextual and that she was terminated because she was becoming more visible in her public and internal efforts to raise issues of discrimination and effect change.

6I have set out below the description of each document requested by the applicant, summarized the arguments of the parties and rendered a Direction. For ease of reference by the parties, I have dealt with the documents in the same fashion as they were presented by the parties. Where production is ordered on the basis of arguable relevance and the respondent claims privilege, the respondent will provide a list of those documents in accordance with Rule 16.

Requests 1 and 2

Complete copy of personnel file of Asfia Sultan

All performance evaluations and performance ratings of following fiscal years: 2004-2005, 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010

7The applicant’s personnel file is clearly relevant to the issues in dispute. The respondent agrees to disclosure of the file. The applicant disputes the respondent’s submission that the applicant’s performance reviews have already been disclosed. The applicant asserts, for example, that a positive review conducted in April 2010 has not been disclosed. Direction: The respondent is directed to produce the documents requested by the applicant including those requested in the reply submissions which confirm the applicant’s positive performance ratings and related bonus payments.

Requests 3 and 4

Approval letter or e-mail from ADM Gary Commeford regarding hiring of Mark Grady as Deputy Superintendent of Operations (from July 1, 2005 - August 31, 2005)

All notes, emails, communications, briefing notes, and memoranda from conference call discussions regarding the Grievance Settlement Board (“GSB”) decision and/or about Mark Grady between any of these individuals: Gary Wylie, Matt Snyder, Marilyn Tomkinson, Jennifer Boyer, Mary-Jo Knapett, Asfia Sultan, Shawn Kearney, Kevin Bell, Steve Small, Jay Hope Kevin Cowie (From February 1, 2010 - July 30, 2010)

8The applicant alleges that the respondent draws a connection between the applicant’s termination and the contemporaneous termination of Deputy Superintendent, Operations, Mark Grady. The applicant also alleges that the respondent timed the applicant’s dismissal to coincide with the dismissal of Mr. Grady, as a pretext to cover up allegedly discriminatory grounds for her termination. The applicant alleges that the respondent relied on the decision of the GSB issued in January 2010 (referred to by the respondents as the “Ranger” decision) for the determination that organizational change was necessary (including her termination) despite the fact that the facts underlying the decision pre-date her appointment as Superintendent.

9The respondent refuses to produce the documents requested on the basis that they are irrelevant, subject to solicitor/client privilege and could be prejudicial to other legal processes which Mr. Grady has initiated against the respondents. In its Response to the Application at paragraph 31, the respondent says the following about the connection between the termination of the applicant and Mr. Grady:

Having identified the need for change, the Ministry determined to dismiss both the applicant and the then incumbent in the position Deputy Superintendent, Operations. The Ministry dismissed from employment the Applicant and Deputy Superintendent on the same day. The former Deputy Superintendent, Operations, is not Muslim or of Southeast Asian origin.

10While I cannot conclude, at this time, that there is a sufficient basis for ordering production of documents associated with the hiring of Mr. Grady, the circumstances associated with the termination of Mr. Grady are arguably relevant to the issues in dispute between the parties. Documents which relate to the connection between the termination of Mr. Grady and the applicant are arguably relevant, as are any discussions about the Ranger decision which are connected to the decision to terminate the applicant and Mr. Grady. The respondent has not articulated a reason why production of documents associated with Mr. Grady’s termination before this Tribunal would be prejudicial to any civil action he has commenced against the respondent. Direction: The respondent is directed to produce all notes, emails, communications, briefing notes, and memoranda from conference call discussions regarding the Grievance Settlement Board (“GSB”) decision which are related to Mark Grady and/or the applicant and/or the need for organizational change and/or between any of these individuals: Gary Wylie, Matt Snyder, Marilyn Tomkinson, Jennifer Boyer, Mary-Jo Knapett, Asfia Sultan, Shawn Kearney, Kevin Bell, Steve Small, Jay Hope Kevin Cowie (From February 1, 2010 - July 30, 2010).

Request 5

All notes, emails, communications, briefing notes, and memoranda from conference call discussions from Correctional Officer Recruitment Retreat held at Corrections College in Hamilton and recorded by Asfia Sultan, Marilyn Tomkinson, Recruitment Unit staff including Bryan Ross and Kathy Manners/Cathy Manners regarding the need for recruitment of Muslim Correctional Officers. (From July 1-30, 2009)

11The respondent has indicated that some information regarding the retreat is contained in the applicant’s personnel file which it has agreed to disclose. The respondent has also agreed to disclose the emails to Marilyn Tomkinson from other members of management regarding the retreat. The applicant takes the position that this is not fully responsive to her request. The respondent has not set out a basis for refusing to produce any of the documents requested, all of which appear to be arguably relevant to the issues in dispute including the applicant’s allegation that she was terminated in part for her promotion of recruitment strategies directed at increasing the number of Muslim employees. Direction: The respondent is directed to produce the documents requested by the applicant.

Requests 6 and 23

All notes, emails, communications, briefing notes, conference call discussions and memoranda about Asfia Sultan, David Snoddy, Muslims, conflict of interest, systemic change, and racial profiling of Muslims between any of the following individuals: Gary Wylie, Matt Snyder, Marilyn Tomkinson, Stuart McGuetrick, Jennifer Boyer, Mary-Jo Knappett, Asfia Sultan, Shawn Kearney, Denise Dwyer, Kevin Bell, Regina Bloskie, Steve Small, Kevin Cowie, Terry Coventry and Jay Hope. (From February 1, 2010 - July 30, 2010)

All notes, emails, communications, briefing notes, memoranda and conference call discussions between Jay Hope's office, Marilyn Tomkinson and Brian Whitehead regarding conflict of interest from that Asfia Sultan completed and faxed to Jay Hope (From June 16-July 30, 2010)

12The documents identified in this request relate to issues which the applicant alleges are at the root of her termination, including the events associated with her conflict of interest declaration which preceded her termination. The request for documents related to the need for systemic change is based on the respondent’s position that the termination was related to the applicant’s inability to lead the organization through the proposed changes. The respondent takes the position that other than what is contained in the applicant’s personnel file, other documents which are subject to solicitor-client privilege, and the conflict of interest application itself, no other information exists. The respondent consents to disclosing information regarding David Snoddy. The respondent does not appear to have responded to the request for documents related to “Muslims”, “systemic change” and “racial profiling of Muslims”, all of which are arguably relevant to the issues in dispute between the parties given that they are properly limited in scope to the six-month time frame leading up to the applicant’s termination. Direction: The respondent is directed to produce the documents requested by the applicant.

Requests 7, 10, 22.

Any external or internal communication regarding the June 13, 2010 event Muslims in Detention/ Building Bridges between conference attendees such as John Madeiros or Chief Vern White of Ottawa police Services, Nancy Worsfold of Crime Prevention Ottawa, Justice Peter Griffiths, Dan Erickson, Correctional Services of Canada, inquiries form CBC or other media, Glenda Paull, Scott Mason, Stephen Ormsby, and members of the public. (From June 14, 2010 – July 12, 2010)

All notes, emails, communications, briefing notes, and memoranda from conference call discussions from Scott Mason, Glenda Paull, Regina Bloskie, and Stephen Ormsby regarding Asfia Sultan and Muslim event of June 13, 2010 (From June 14-July 30, 2010)

All notes, emails, communications, briefing notes, and memoranda and conference call notes related to Asfia Sultan and/or Muslims from June 13, 2010 among any of the following individuals: Marilyn Tomkinson, Kevin Cowie, Jay Hope, Steve Small, Matt Snyder, Gary Wylie, Regina Bloskie, Jennifer Boyer, and Janet McConnell. (From June 13, 2010 to July 30, 2010)

13The applicant argues that these documents are relevant to her allegation that she was dismissed in part because of her involvement in the Muslims in Detention event and because of the public attention given to that event. The respondent asserts that apart from the information provided by the applicant, the respondent has no other information regarding the event including briefing notes or other documentation. The respondent indicates that Assistant Deputy Small and Deputy Hope have no information regarding this event. The applicant has replied seeking clarification about what is in the possession of the other named individuals. I consider it unnecessary for the respondent to address this issue, unless I am incorrect in assuming that the declaration that there are no documents related to this event applies equally to all of the individuals named in the applicant’s request. Accordingly there will be no direction issued in relation to this request.

Requests 8 and 9

Email from Jocelyne Allard on June 16, 2010 to Marilyn Tomkinson advising her of dates of all approved vacation for Senior Management Team of OCDC (Superintendent, Deputy Superintendents and Regina Bloskie). (From June 14, 2010 - July 12, 2010).

Email from Asfia Sultan to Deputies Linda Doucet, Mark Grady, Maureen Richardson, Stephen Ormsby, Regina Bloskie and Secretary Jocelyne Allard relaying the message from Marilyn Tomkinson that their attendance at the "Systemic Change " meeting of July 12, 2010 was mandatory, and asking Jocelyne to contact Steve to advise him that he needed to cancel his approved vacation day of July 12, 2010. (Email between dates June 16, 2010 - June 28, 2010)

14The respondent indicates that these documents are contained in the applicant’s personnel file. This response was satisfactory to the applicant and accordingly, no direction will be issued.

Request 11

All notes, emails, communications, briefing notes, and memoranda from conference call discussions from Marilyn Tomkinson, Kevin Bell, Steve Small, Kevin Cowie, Jay Hope, Sean Kearney, and Denise Dwyer regarding the termination of Asfia Sultan (From February 1, 2010 to July 30, 2010)

15The applicant argues that the named individuals are ministry employees who the applicant believes had some involvement in, or advance knowledge of, the termination of her employment. The respondent argues that other than what has been provided, all other information in this regard is subject to solicitor-client privilege; accordingly this request will be dealt with in accordance with my general direction in paragraph 6 to provide a list in accordance with Rule 16.

Request 12

Statistics on Muslim offenders: percentage of Muslim offenders in Ontario correctional system both in custody and under supervision in the community on probation and parole (From 2000-present)

16The applicant argues that these documents are relevant to the applicant’s allegations that she was increasingly visible in her internal and public efforts to effect change in response to a disproportionately high and growing number of Muslims incarcerated at OCDC and within other provincial correctional institutions. The applicant alleges that her initiatives as a Muslim Superintendent, taken in response to this situation, resulted in her being terminated. The respondent argues that the statistics are irrelevant. In my view, the issue at this stage is not whether the applicant’s beliefs about the number of Muslims who are incarcerated in the Ontario Correctional system are borne out by the statistics. This issue is what the applicant observed, believed to be true and how she acted in response. The applicant will have an opportunity to describe her own observations about these issues and how those observations motivated her to take the actions she alleges are at the root of her termination. Direction: This request is denied.

Requests 15, 18 and 19

Employment Systems Review (ESR) reports conducted within the last 3 years. Conclusions drawn from ESR. All hiring decisions of racialized and Aboriginal employees promoted and /or appointed following completion of ESR reports. (From 2007-2010)

Total number of all Muslim employees at Ottawa-Carleton Detention Centre on July 12, 2010

Total number of Muslim employees in the Ministry of Community Safety & Correctional Services of Ontario and their job titles from February 2, 2005-July 12, 2010

17The applicant alleges that these documents are relevant to her allegation that her termination arises from a broader systemic issue of under-representation of racialized employees. The respondent argues that it does not collect data regarding the ethnic origin or religion of its employees, that personal information regarding employees is subject to issues of privacy, and that these documents are irrelevant to the Application. This request is different, in my view, from the request for statistics related to Muslims who are incarcerated. The applicant alleges that her termination arises in part as a result of systemic issues of under-representation. The accuracy of that assertion may be a factor in determining her allegations. The test of arguable relevance is not met simply because the applicant makes a bald allegation. She must show that the documents requested may prove or disprove a fact in issue. The fact in issue here is the allegation that the applicant’s termination arises in part because of systemic under-representation which she alleges she has observed and been active in attempting to correct. Direction: The respondent is directed to produce the documents requested by the applicant, to the extent that they exist, in a form which does not permit the disclosure of the identity of any individual employees.

Request 17

Corrections Investigation Security Unit (CISU) investigation report involving Correctional Officer Paul Hynes on excessive use of force on a Muslim inmate in 2009 that Chaplain Carl Wake witnessed.

18The applicant alleges that this incident came to her attention during her tenure as Superintendent and that she was terminated in part because of her efforts to address issues involving Muslims in detention. The respondent denies that this incident is connected in any way to the applicant’s termination. At this stage, the applicant has not provided me with sufficient information to determine that the report itself is arguably relevant to the dispute about her termination. The applicant will be able to testify about her knowledge of this event and why she believes that it is connected to her termination. Accordingly, the request is denied.

Requests 20 and 21

Emails from Mary-Jo Knappet to Asfia Sultan and/or Marilyn Tomkinson asking Asfia Sultan to ensure that no one else from OCDC attends the conference call of March 4, 2010. (From February and March of 2010)

Emails from Marilyn Tomkinson or Mary-Jo Knappet to Asfia Sultan advising her that the ADM Steve Small is asking Asfia Sultan to prepare an action plan for OCDC to implement systemic remedies stemming from GSB Ranger decision. (From Feb. 14, 2010 - March 31, 2010)

19The respondent’s response to this request is “see personnel file”. The applicant argues that this is non-responsive and seeks a direction from the Tribunal. Direction: The respondent is directed to provide the documents requested by the applicant.

20The respondent is to comply with the directions contained in this Interim Decision by Friday, September 7, 2012.