HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bahareh Norouzian
Applicant
-and-
Young Women’s Christian Association of Greater Toronto
Respondent
-and-
Canadian Union of Public Employees, Local 2198
Intervenor
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Norouzian v. Young Women’s Christian Association of Greater Toronto
WRITTEN SUBMISSIONS
Bahareh Norouzian, Applicant
Self-represented
Young Women’s Christian Association of Greater Toronto, Respondent
Frances Gallop, Counsel
Canadian Union of Public Employees, Local 2189, Intervenor
No submissions
Introduction
1The applicant has made Requests for Orders During Proceedings (RFOPs) in which she seeks further documents. This Interim Decision deals with those requests.
2Following a summary hearing in this matter, a number of the applicant’s allegations were dismissed as having no reasonable prospect of success and an interim decision directed that certain of the applicant’s allegations continue in the Tribunal’s process. The matters continuing in this process are described in the interim decision Norouzian v. Young Women’s Christian Association of Greater Toronto, 2012 HRTO 435 (“2012 HRTO 435”).
3The documents the applicant seeks are as follows:
The complete personnel files of three employees of the respondent, including their “personnel status notices”, their applications for employment, their hiring request forms, their certificates, degrees or diplomas, interview questions notes or records relating to the evaluation of candidates offered the position of Housing Counsellor, Immigration/Refugee Counsellor and Relief Worker;
The offer to one employee of the following positions: Housing Counsellor; Shelter Support Worker; Addiction Counsellor; Business Administrator, YWCA Women’s Shelter and Arise;
The offer to a second employee of the following positions: Shelter-Support Worker; Immigration/Refugee Counsellor; Relief Position;
The offer to a third employee of the following positions: Shelter-Support Worker; Housing Counsellor; Relief Position;
A copy of all staff meeting minutes from September 2009 to April 30, 2010.
4In stating her reasons for seeking the above-noted personnel files and job offers, the applicant states “These documents support the claims I have made in my application”.
5The respondent submits that the applicant has not established that the above-noted personnel files and job offers are relevant to the issues before the Tribunal. It submits that the documents she seeks will not be of assistance to the Tribunal in determining whether the applicant’s manager did or did not make certain comments, nor will they be of assistance to the Tribunal in determining whether the respondent did or did not engage in reprisal against the applicant.
6In stating her reasons for seeking a copy of the staff meeting minutes, the applicant states that the respondent has claimed that she undertook activity without having the appropriate authority to do so and that she failed to share information with colleagues at staff meetings, was guilty of inappropriate behaviour at staff meetings and that she failed to carry out instructions she had been given by her manager. She submits that she should receive the minutes of staff meetings because that is where staff shares information about clients, activities, events, etc., and that is where staff receives direction from the manager.
7The respondent submits that the team meeting minutes will be of no assistance in determining what was said in private meetings between the applicant and her manager, nor will they be of assistance in determining the reasons for the denial of relief shifts or her “non-selection” for the Housing Worker position for which she applied. Further, the respondent submits that the number of RFOPs filed by the applicant through the course of these proceedings is vexatious. It notes that she did not even make a request of the respondent for the meeting minutes prior to filing the RFOP in which she seeks an order for their production.
8Further, the respondent submits that the applicant has not identified what documents the applicant intends to rely upon at the hearing, nor has she provided sufficiently detailed witness statements.
Request for Documents
9Prior to the RFOPs which are the subject of this interim decision, the applicant filed a Request for Order During Proceedings (RFOP) which was the subject of an interim decision, Norouzian v. Young Women’s Christian Association of Greater Toronto 2012 HRTO 2079 (“2012 HRTO 2079”). In that previous RFOP, among other things, the applicant sought copies of job applications filed by former co-workers, including those filed by the same “second” and “third” employees noted above, when they applied for the positions of Shelter Support Worker and Immigration Refugee Counsellor. In the above-noted interim decision 2012 HRTO 2079, the Tribunal denied the applicant’s request for those job applications, as they related to positions which were not relevant to the allegations of discrimination she made and were therefore not arguably relevant in these proceedings. Further, the applicant sought the job applications for the same “third employee” noted above when she applied for the position of Housing Counsellor, a position the applicant alleged she was denied for discriminatory reasons. Her request for that documentation was also denied in the above-noted interim decision 2012 HRTO 2079, as the individual whose job application she sought was unsuccessful in the same job competition where she had been unsuccessful and the documentation was not arguably relevant. That interim decision also found that the job applications of others for Relief work were not arguably relevant to the applicant’s position that she had been denied Relief work by way of reprisal.
10The applicant has alleged discrimination in the May 2010 job competition for Housing Counsellor and in the respondent’s failure to award her relief shifts following the April 30, 2010 end date of her fixed term contract. In the same way in which the above-noted interim decision 2012 HRTO 2079 found that employees’ job applications for positions which are not the subject of this Application are not arguably relevant in these proceedings and that applications for Relief work were not arguably relevant, interview questions notes or records relating to the evaluation of candidates offered those positions, are not arguably relevant to these proceedings. Accordingly, the applicant’s request for production of the offer to the employees of the following positions or other documentation relating to these positions: Shelter Support Worker; Addiction Counsellor; Business Administrator, YWCA Women’s Shelter and Arise; Immigration/Refugee Counsellor and; Relief Position, is denied.
11Further, the applicant has provided no basis for production of the job offer of Housing Counsellor with respect to the first employee listed above. She has not alleged that the first applicant was awarded the position of Housing Counsellor which she alleges she was denied for discriminatory reasons in May 2010. Additionally, she seeks the job offer of Housing Counsellor with respect to the third employee, and as noted above, the third employee was unsuccessful in May 2010 job competition and documentation relating to her candidacy is not arguably relevant. Any subsequent success she may have had in a job competition which does not form part of the allegations in this Application, is not arguably relevant to these proceedings.
12The applicant’s broader request, for the personnel files of the three employees of the respondent, is denied, as the applicant has provided no basis upon which that documentation can be considered arguably relevant to the issues before the Tribunal.
13The applicant’s request for production of a copy of staff meeting minutes from September 2009 to April 30, 2010 is a request for documentation which is arguably relevant to these proceedings, and her request is granted. The interim decision, 2012 HRTO 435, permitted the application to proceed with respect to several allegations, including her allegations that the respondent denied Relief shifts to her following the expiry of her limited term contract in April, 2010 and denied her a Housing Worker position in May 2010, for reasons which contravene the Code. In its Response to the Application, the respondent stated that the applicant was denied further Relief work due to performance concerns, a position which was repeated in their Response to the earlier RFOP in which she sought employees’ job applications for Relief work. The respondent has also taken the position that the decision not to hire her for the Housing Worker position in May 2010 was influenced by her inability to work with her manager or colleagues. In its Response to the Application, the respondent stated that the applicant had attempted to file a complaint with the Law Society without proper authorization from her manager (no date given), and had not shared information and had behaved badly at a February 9, 2010 staff meeting. In the circumstances where the respondents have alleged that the non-discriminatory reason for not assigning further Relief work or awarding her the Housing Worker position in May, 2010, included these performance concerns, I find that the minutes of the staff meetings are arguably relevant. Accordingly, the respondent is directed to deliver to the other parties and to file with the Tribunal a copy of the minutes of the staff meetings from September 2009 to April 30, 2010.
Rules 16 and 17 of the Tribunal’s Rules of Procedure
14In C.D. v. Wal-Mart Canada Inc. (“C.D.”), 2010 HRTO 426, the Tribunal explained, at para. 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics .A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.
15Upon review of the summary of the witness statements provided by the applicant, I am not persuaded that they are sufficiently detailed, setting out the particular evidence that the witnesses will give. Accordingly, the applicant is directed to file with the Tribunal and deliver to the other parties amended witness statements which are more than a recitation of general topics, but set out the particular evidence that the witness will give.
16Additionally, I note that the applicant has filed with the Tribunal and delivered to the other parties copies of what she describes as her “arguably relevant documents”. It is not clear that these are the documents she intends to rely upon at the hearing. Accordingly, she is directed to advise the Tribunal and the other parties as to whether these are documents she intends to rely upon at the hearing and if not, she is directed to file with the Tribunal and deliver to the other parties a copy of all documents upon which she intends to rely at the hearing.
Other
17The applicant has sent several RFOPs in this matter, including RFOPs seeking documents. Given the fact that the deadline for the production requirements pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure have all passed, and given that the hearing date is imminent, it is not practicable for the applicant to submit further RFOPs in advance of the hearing date, as under the Rules of Procedure, the respondent has an opportunity to file its response prior to any decision from Tribunal regarding the RFOP. It is always possible that the existence of a document or documents will become apparent in the course of the proceedings and should this occur, the Tribunal will address the issue if and as it arises at the hearing.
DIRECTIONS
18The parties are directed as follows:
By December 21, 2012, the respondent is directed to file with the Tribunal and to deliver to the other parties copies of the minutes of staff meetings from September 2009 to April 30, 2010 and;
By December 21, 2012, the applicant is directed to file with the Tribunal and to deliver to the other parties amended witness statements for her witnesses, which are detailed and set out the particular evidence that the witness will give, rather than just general topics and;
By December 21, 2012, the applicant is directed to file with the Tribunal and to deliver to the other parties a list of all documents upon which she intends to rely and a copy of each document on the list or confirmation that each document has already been provided to the other parties and to the Tribunal.
19I am not seized.
Dated at Toronto, this 12^th^ day of December, 2012.
“Signed by”
Maureen Doyle
Vice-chair