Vanessa Gyles v. 2212088 Ontario Inc. dba Edible Arrangements-Store #1107, Ramandeep Shina, and Colleen Kehl, 2012 HRTO 452

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vanessa Gyles

Applicant

-and-

2212088 Ontario Inc. dba Edible Arrangements-Store #1107, Ramandeep Shina, and Colleen Kehl

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: March 2, 2012 Citation: 2012 HRTO 452 Indexed as: Gyles v. 2212088 Ontario

1Vanessa Gyles, the applicant, has filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). This Interim Decision addresses two requests for the production of documents. These requests have been made by the corporate respondent, 2212088 Ontario Inc. dba Edible Arrangements-Store #1107, and its owner, Ramandeep Shina, one of the two named personal respondents.

2On February 1, 2012 the corporate respondent and Ms. Shina filed a Request for an Order During Proceedings (“RFOP”) asking that the applicant produce particulars and documents related to a wrongful dismissal suit initiated by the applicant against a previous employer. The RFOP asks that the applicant be directed to provide all the details and documents related to her legal action including any court rulings. The RFOP states that the applicant’s past behaviour might be similar to her behaviour in the events that give rise to the Application.

3On February 13, 2012 the corporate respondent and Ms. Shina filed a further RFOP asking that the Tribunal direct the applicant’s previous employer, Emerson Canada, to produce copies of the applicant’s first year performance review. The RFOP states that the requested document will show that the applicant had attendance and tardiness issues with her previous employer, as she did with the corporate respondent.

4The Tribunal has not received responses to these two RFOPs from the applicant or Colleen Kehl, the other named personal respondent. The corporate respondent and Ms. Shina also provided a copy of the second RFOP to Emerson Canada which has not filed a response.

DECISION

5I have considered the corporate respondent and Ms. Shina’s requests for documents from both the applicant as well as from a former employer of the applicant. The Tribunal has the power under its Rules of Procedure to order the production of documents from not only parties but non-parties such as the applicant’s previous employer (Rule 1.7(p)).

6The threshold for production of documents in a human rights proceeding is "arguable relevance". While described as “not a particularly high bar”, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute. See Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at para 37.

7The Application alleges that the applicant was subject to discriminatory treatment while working for the corporate respondent arising from a single incident on March 18, 2010 during which a racial comment was made. The Application alleges that the applicant’s insistence that the comment be addressed ultimately led to the termination of her employment with the corporate respondent.

8In their Response to the Application the corporate respondent and Ms. Shina submit that the incident on March 18, 2010 did not take place as alleged by the applicant and that the applicant’s subsequent dismissal was due to insubordination, poor attendance and lying.

9In my view, the corporate respondent and Ms. Shina have not shown that the documents that relate to a legal action the applicant may have taken against a previous employer that they have requested are arguably relevant. The matter that has to be determined by the Tribunal is what took place on March 18, 2010 and afterwards and to potentially consider the respondents’ explanations for their actions including why the applicant was dismissed. The applicant’s legal proceedings against a previous employer for wrongful dismissal would not assist the Tribunal in determining what happened on March 18, 2010 and more broadly what happened during the applicant’s employment with the corporate respondent. The requested documents are unrelated to the time, place or circumstances of the specific incident giving rise to the Application and to the issues it raises.

10Similarly, I find that the corporate respondent and Ms. Shina have not shown that a performance appraisal for the applicant from a previous employer is arguably relevant. The issue of how the applicant performed while employed at the corporate respondent is, of course, a potential issue the Tribunal will consider including the issue of the applicant’s possible absenteeism and tardiness. However, how a previous employer may have evaluated the applicant at a different time in a different job is, in my view, distinct and too remote from how the corporate respondent and Ms. Shina may have considered and evaluated the applicant’s employment (including her absenteeism and tardiness) to be considered arguably relevant.

11For these reasons the corporate respondent and Ms. Shina’s requests are denied.