Wales v. Toyota Motor Manufacturing Canada, 2012 HRTO 2104

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicole Wales

Applicant

-and-

Toyota Motor Manufacturing Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: November 6, 2012

Citation: 2012 HRTO 2104

Indexed as: Wales v. Toyota Motor Manufacturing Canada

APPEARANCES

Nicole Wales, Applicant

Self-represented

Toyota Motor Manufacturing Canada Inc., Respondent

Ted Kovacs, 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 disability and reprisal. The hearing in this matter is scheduled for November 21 and 22, 2012.

2A case management conference call was heard on October 31, 2012 (“the conference call”), to discuss various outstanding preliminary issues between the parties in advance of the hearing. Those issues are addressed below, with no significance to the order in which they appear.

applicant’s request for order during proceedings dated september 28, 2012

3The applicant filed a Request for Order During Proceedings (“RFOP”) dated September 28, 2012 in which she requested production of four items. The respondent filed a Response to the RFOP. During the conference call, only two of the items remained outstanding, being: a) statistics for number of new hires, medical placement transfers from April 2010 until present, including specific shifts, and “stats on the September 2010 Production Listing sheet as to how many people in each department in both plans applies to those open positions”; and b) the accident report filled out by Bruce Parsons and the applicant before June 30, 2009, in regards to left lower lumbar back and all of the applicant’s FAFs that were filled out for 2009.

4The applicant claims that her production requests are relevant to the issues she raises in her Application, as she believes that there were many opportunities to accommodate her into another position by the respondent, including from September 3, 2010 until August 15, 2011. Further, the applicant submits that left lower lumbar back accident report and her 2009 FAFs address the respondent’s position, stated in its Response, that she did not assert she had a disability until September 2009 for which she required accommodation. The applicant believes that the respondent keeps on file what position new hires are placed and what department employees are transferred for medical reasons, but she is not asking that the respondent create new documents with this information.

5The respondent submits that it does not have this information, has disclosed all arguably relevant documents, and does not have an obligation to create new documentation showing this information. Further, the respondent submits that the applicant’s request is very broad.

6The parties have an obligation to disclose to each other arguably relevant documents in advance of the hearing, in compliance with Rule 16.1 of the Tribunal’s Rules of Procedure. Under Rule 16.2, parties have an obligation to file with the Tribunal and produce to each other, a copy of all documents upon which they intend to rely at the hearing. The parties have both filed a number of documents with the Tribunal to comply with their disclosure obligations.

7The test for disclosure of documentation is arguable relevance, which is not a particularly high threshold (see Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, at para. 8). It does seem to the Tribunal that the information being requested by the applicant is arguably relevant to the issues in this hearing. However, the respondent says that it has disclosed its arguably relevant materials to the applicant and suggests that complying with the applicant’s request would require it to create new documents.

8The respondent is directed to review its records to determine whether or not it has the information that address the applicant’s production request in a) above and if so to deliver that forthwith to the applicant. At this point I am not prepared to order that the respondent create such statistics for the purposes of the hearing.

9The disclosure of the applicant’s medical information, including the accident report and the 2009 FAFs, is addressed below in relation to the applicant’s medical records held by the respondent’s health care centre.

respondent’s objection to the timeliness of some of the applicant’s allegations

10In a previous Interim Decision, 2011 HRTO 2305, the Tribunal permitted the applicant to amend her Application to include additional allegations of harassment. The Tribunal also granted the respondent the opportunity to file an amended Response, which it did. In its amended Response, the respondent submits that some of the additional allegations of harassment are untimely as they are being raised more than one year before the Application was filed.

11Sections 34(1) and (2) of the Code provide:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2) of the Code. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

13During the conference call, the Tribunal stated that whether or not some of the allegations are untimely would be reserved to the hearing and addressed during the applicant’s evidence. The Tribunal also stated that if the allegations were untimely, the applicant would be expected to provide a good faith explanation for the delay in raising the allegations.

disclosure of the applicant’s medical records located within the respondent’s health CARE centre

14The respondent seeks production of the medical documentation that the applicant provided to its health centre as well as copies of the clinical notes of the health centre and submits that such information should be restricted to those involved in the hearing. The applicant does not consent to the release of this information and does not want the respondent to review it, but does not object to this information being ordered to be disclosed by the Tribunal.

15It is well-established that a party seeking production of information must demonstrate that information is “arguably relevant” to the proceeding. In McKay v. Toronto Police Service Board, 2009 HRTO 1220, the Tribunal has held that in order to establish “arguable relevance” there must be a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal described the analytical approach to assessing “arguable relevance” as follows, as paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law. Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provider an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there [are] any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

16Although “arguable relevance” is not a high onus for the requesting party to satisfy, documents that meet the “arguable relevance” threshold may not be disclosed or may be subjected to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. As stated by the Tribunal in Lampi, supra, at paragraph 10, “(d)ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing”. The Tribunal must consider, as recognized in McKay, supra, whether fairness in the circumstances requires that production be subject to certain limitations, terms or conditions, in particular to address such matters as privilege or confidentiality.

17I find that the applicant’s health files are arguably relevant to the factual and legal issues in dispute, namely the nature of the applicant’s restrictions and accommodation of her disability. Further, the applicant has referenced her interactions with staff of the health care centre in her pleadings, made allegations that at least one of the staff’s understanding of the corporate respondent’s duty to accommodate was flawed, and requests herself disclosure of an accident report from before June 30, 2009 and her 2009 FAFs. However, there are some privacy concerns that also need to be addressed in ordering disclosure of the applicant’s health care centre file.

18Accordingly, the Tribunal orders the following:

a. The respondent is granted disclosure and access to the applicant’s health care centre’s files from July 21, 2008 onwards;

b. A copy of the applicant’s health care centre file shall be disclosed to the applicant, including the accident report from before June 30, 2009 and her 2009 FAFs;

c. The respondent’s advisors, including legal advisors, and potential witnesses (in relation to information contained in the applicant’s health files) are the only individuals permitted to access and use the applicant’s health files as identified in (a); and

d. The disclosure of the applicant’s health centre file is limited to only the proceeding before the Tribunal, in accordance with Rule 3.3 of the Tribunal’s Rules of Procedure.

witnesses

19The applicant has identified eight potential witnesses and the respondent has identified 27 potential witnesses. During the conference call, the Tribunal advised the parties that it anticipated that only the applicant would be testifying during the first day and that the parties’ witnesses were not expected to attend the first day of hearing. Further, the Tribunal advised that the parties should be prepared to discuss the order of and the necessity of the witnesses after opening submissions on the first day of hearing.

20As discussed during the conference call, if more days are required beyond the two hearing days that are scheduled, then the Tribunal will canvass further hearing dates with the parties.

documents

21There is some duplication in the documents that the parties have filed with the Tribunal in compliance with their disclosure obligations. During the conference call, the Tribunal queried whether the parties could agree to some documents being entered on consent and the parties said that they would consider this. Accordingly, this will be an issue that will be canvassed at the beginning of the hearing.

mediation-adjudication

22During the conference call, the Tribunal informed the parties that it offers voluntary mediation-adjudication. The mediation-adjudication agreement is located on the Tribunal’s website at www.hrto.ca, and found under the “other forms” tab.

23The applicant indicated that she is not interested in mediation-adjudication. If the parties are interested in mediation-adjudication, they are directed to email the Tribunal, copying the other party, by Friday, November 16, 2012.