Pereira v. Humber River Regional Hospital, 2012 HRTO 1844

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Irene Pereira Applicant

-and-

Humber River Regional Hospital and Ontario Nurses’ Association Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 27, 2012 Citation: 2012 HRTO 1844 Indexed as: Pereira v. Humber River Regional Hospital

WRITTEN SUBMISSIONS

Irene Pereira, Applicant Patrick James, Counsel

Humber River Regional Hospital, Respondent Carolyn Cornford Greaves, Counsel

1This is an Application filed on October 6, 2011 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 and with respect to membership in a vocational association because of race, place of origin and ethnic origin.

2The purpose of this Interim Decision is to address a Request for an Order During Proceedings filed by the applicant on August 17, 2012 (the “Request”). The Request seeks an order requiring the respondent Hospital (the “Hospital”) to produce copies of certain work assignment schedules. The applicant submitted that these documents and the changes made to them are evidence of the discrimination the applicant allegedly suffered. The applicant noted that her counsel requested these documents on five separate occasions. Initially, the Hospital refused to disclose the documents, but subsequently allowed the applicant to review the documents under highly restrictive conditions.

3The Hospital filed a Response to a Request for Order on August 31, 2012. The Hospital opposes the Request and submitted that it has already disclosed 2010 and 2011 shift assignment documents. The Hospital also submitted that the Request was premature, as the Tribunal had yet to issue a decision in the matter following a Summary Hearing and the proceeding was not yet at the stage when production is required pursuant to the Tribunal’s Rules of Procedure (the “Rules”).

4The Tribunal held a Summary Hearing regarding this Application on Monday, April 23, 2012 to determine whether it should be dismissed as having no reasonable prospect of success. On Friday, April 20, 2012, the applicant filed a Request for an Order During Proceedings seeking to amend the Application by adding allegations of two incidents where the applicant was subject to ethnic or racial harassment and discrimination (the “new allegations”). In an Interim Decision, 2012 HRTO 1680, released on September 6, 2012, the Tribunal dismissed all but one allegation contained in the Application. The Tribunal directed the parties to make submissions regarding the remaining allegation because it appeared that the applicant purported to change the factual and legal basis for that allegation. The Tribunal deferred addressing the request to amend the Application, pending determination of the status of the remaining allegation from the original Application.

5It appears that the Hospital was not aware of the new allegations prior to receiving the request to add them to the Application. The parties’ submissions indicate that upon learning of the allegations in the request to amend, the respondent decided to investigate the allegations, using an external investigator, and invited the applicant to participate in the investigation. The applicant, through counsel, accepted the invitation on the condition that certain work assignment and work scheduling documents be disclosed to her prior to any meeting with the investigator, i.e., the same documents that the applicant seeks in the Request. The Hospital initially took the position that it was not required to disclose the requested documents. The applicant clarified that she required the documents to identify the exact dates on which alleged incidents of discrimination occurred. Consequently, the respondent provided the applicant access to the documents while meeting with the investigator, but did not allow her to take copies.

ANALYSIS AND DECISION

6For the following reasons the Request is denied.

7First, it is clear that the applicant’s request for disclosure arose in the context of the Hospital’s investigation of the new allegations. The applicant required the documents in order to precisely identify when alleged incidents of discrimination occurred. It appears that the Hospital provided, or are willing to provide, access to the documents sufficient for that purpose. It may be that the Hospital’s investigation will come under scrutiny, pursuant to an Application to the Tribunal. The Tribunal, however, has no jurisdiction under the Code or the Rules to supervise the conduct of internal investigations. The Tribunal may grant interim relief but only in exceptional circumstances that do not apply in this case.

8Second, the Request is premature. Whether the new allegations are attached to the current Application or must be included in a separate Application has not yet been determined. Regardless, the litigation of these allegations has not reached the point under the Rules when disclosure of documents is required (se Rule 16). In these circumstances, there is no reason to compel the Hospital to disclose any documents at this time.

9The Request is denied.