Gridin v. Integrated Technology Ltd., 2012 HRTO 389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Larisa Gridin Applicant

-and-

Integrated Technology Ltd. Respondent

INTERIM DECISION

Adjudicator: Geneviève Debané Date: February 23, 2012 Citation: 2012 HRTO 389 Indexed as: Gridin v. Integrated Technology Ltd.

1This Application was filed on August 27 2010 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of sex and sexual solicitation and/or advances. The respondent Integrated Technology Ltd. has filed a Response denying the allegations in the Application. This matter is scheduled for a hearing in Toronto on June 11, 12 and 13 2012.

2This Interim Decision addresses a Request for an Order During Proceeding filed (the “Request”) by the applicant seeking the production of documents and that the respondent be compelled to provide her with the last known address of a material witness.

Production Request

3The respondent terminated the applicant’s employment for just cause on August 25, 2010 alleging amongst other reasons that it had received numerous customer complaints with respect to the applicant’s attitude and failure to respond in a timely manner. The applicant alleges that she was terminated because she raised a complaint that she was being subjected to harassment and discrimination on the basis of her sex. In her Application she denies that there were any customer complaints made against her.

4In the Request the applicant asks that the Tribunal order “that the respondent produce to the applicant all emails in its possession relating to the employment of Larisa Gridin, specifically:

1. All emails received by or sent by ITL which mention “Laura”, “Larisa”, “Laura Gridin” or “Larisa Gridin” in the subject or the body (except those which are solicitor-client privileged);

2. All messages sent from Laura Gridin’s ITL email account;

3. All messages received by Laura Gridin’s ITL email account;”

5The applicant states in the Request, amongst other reasons in support of the production of these documents, that the respondent is relying on a tiny subset of “thousands of emails” that the applicant sent to coworkers, suppliers and vendors during her employment and that it is not fair for the respondent to be the one in the position to determine the relevance of the emails in question. The applicant also alleges that there are emails from vendors containing “glowing praise” for her work. The applicant asserts that she is entitled to respond to the respondent’s reliance on unfavourable emails by showing that there are far more favourable emails in existence and that the Tribunal’s view with respect to the applicant’s work performance should not be skewed by a heavy reliance on isolated incidents. The applicant states that the respondent need not review the emails in question and that they can be copied on an electronic file which would take less than an hour. In the alternative the applicant requests “that the above emails be produced in accordance with the Supreme Court of Canada’s O’Connor procedure” and that the Tribunal review the thousands of emails to determine their relevance. In the further alternative, the applicant requests that the Tribunal not permit the respondent to rely on the emails filed in its Response.

6The respondent objects to the production Request on the basis that the documents sought by the applicant are not relevant to the proceedings and that she is engaging in a “fishing expedition”. The respondent also takes the position that it manufactures circuit boards that have military applications and that it is subject to a number of laws and regulations including the International Trade in Arms Regulations, the Controlled Goods Program and Defence Production Act and that it must comply with strict confidentiality guidelines. In addition the respondent states that it would have to review all of the emails to determine whether there are any confidential and/or proprietary information and that this would not take one hour as alleged by the applicant. Further, the respondent notes that the Tribunal does not award the reimbursement of legal costs which would be significant in these circumstances.

7The 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: 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: Lampi at para. 9.

8The issue before the Tribunal is to determine whether the respondent infringed the applicant’s right to be free from harassment and/or discrimination in the workplace. The applicant asserts, in essence, that the respondent’s reliance on cause for her termination is a pretext for a discriminatory motive. In this context, documents that either demonstrate or refute the respondent’s position about the applicant’s performance may be arguably relevant. However, this does not warrant ordering production of every email in the respondent’s possession that contains a reference to the applicant, or every email ever sent to or from the applicant during her employment. In the absence of any indication that any specific email contains information relevant to the issues in the Application, I agree that requesting such broad disclosure would amount to a fishing expedition. The applicant’s request for production in this respect is denied.

9It is unnecessary, given my determination, to consider whether this would be an appropriate case to follow the procedure set out in the Supreme Court of Canada’s decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (O’Connor”).

Disclosure of the identity of a material witness

10In the Application, the applicant alleges that a short term employee named “Michelle” was a witness to at least one incident of harassment. In the Request the applicant asks the Tribunal to compel the respondent to disclose “Michelle’s” full name and last known contact information because she is a material witness.

11The respondent takes the position that it is not certain as to whether or not “Michelle” does indeed have any relevant information. Further, it notes that absent consent from “Michelle” that it cannot provide this information to the applicant because of privacy concerns.

12Having reviewed the pleadings, I agree with the applicant that “Michelle” is a material witness who may have relevant evidence and in the circumstances I find it appropriate to order the disclosure of her full name and last known address.

Order

13The Tribunal orders that within 10 days from the date of this Interim Decision the respondent must provide to the applicant the full name of “Michelle” and her last known address.

14I am not seized.

Dated at Toronto, this 23rd day of February, 2012.

“signed by”

Geneviève Debané

Vice-chair