HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lilly Widdis
Applicant
-and-
Desjardins Group/Desjardins General Insurance
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Widdis v. Desjardins Group/Desjardins General Insurance
WRITTEN SUBMISSIONS
Lilly Widdis, Applicant
Rani Khan, Counsel
Introduction
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 creed. The respondent has filed a Response denying the allegations in the Application. This matter is scheduled for hearing on November 5, 2012, in Toronto.
2This Interim Decision addresses the applicant’s Request for an Order During Proceedings (the “Request for order”) filed on September 25, 2012.
Background
3The applicant alleges that she was not offered a position of New Business Clerk (the “position”) with the respondent after she advised one of its representatives that she could not work on any Saturdays because of her creed.
4The Response asserts that the applicant was not hired in the position because she was not among the 17 best qualified applicants; 15 of whom had direct call centre experience and the other two of whom were referrals from existing employees.
5The Request for Order seeks the following Orders:
a. Production of the following documents from the respondents: the job posting, job description, application/resumes of applicants offered the position of New Business Clerk, any notes/records relating to the evaluation of the candidates offered the position, any interview checklists with questions and answers, and any internal/external correspondence regarding the job competition; and
b. That the respondent comply with its obligations pursuant to Rules 16.2, 17.1 and 17.2.
6On September 26, 2012, the Tribunal issued a Case Assessment Direction abridging the time for the respondent to file a Form 11 Response to the Request for Order to October 3, 2012.
7As of this date, the respondent has not filed a Response to the Request for Order nor has it filed any of its hearing materials with the Tribunal.
The Law
8The Tribunal’s Rules state:
16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of documents upon which the party intends to rely; and
b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.
16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:
a) a list of documents upon which the party intends to rely; and
b) a copy of each document contained on the list.
16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.
17.1 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.
17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.
9The respondent was directed to deliver and file the documents required under Rules 16.2, 17.1 and 17.2 by September 21, 2012, and still has not done so. Therefore, I find it is appropriate to order the respondent to comply with its obligations under the Rules immediately.
10The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: see Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: see Lampi at para. 9.
11Having considered the applicant’s Request for production, I find that the documents sought are relevant to the issues in the pleadings. Specifically, the documents sought are arguably relevant to the defences raised by the respondent which allege that the successful candidates had experience that the applicant did not possess. I find that the other documents sought which relate to the job competition itself are also arguably relevant. However, at this stage I find that it is appropriate for the respondent to redact the personal information of each successful candidate; although their names should not be redacted.
ORDER
12By no later than October 15, 2012, the Tribunal orders the respondent:
a. To deliver to the respondent and file with the Tribunal all documents pursuant to Rules, 16.2, 17.1 and 17.2;
b. To produce copies of the following documents to the applicant:
i. The job posting, job description, application/resumes of applicants offered the position of New Business Clerk, any notes/records relating to the evaluation of the candidates offered the position, any interview checklists with questions and answers, and any internal/external correspondence regarding the job competition;
ii. The respondent can redact, confidential information about the candidates which would identify their home address and/or telephone number and/or contact information; and
iii. The respondent must bring a copy of the unredacted documents to the hearing.
13If the respondent does not comply with the Orders in this Interim Decision, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.
Dated at Toronto, this 5th day of October, 2012.
“Signed by”
Geneviève Debané
Vice-chair