HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Wales
Applicant
-and-
Toyota Motor Manufacturing Canada
Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty
Indexed as: Wales v. Toyota Motor Manufacturing Canada
WRITTEN SUBMISSIONS
Nicole Wales, Applicant ) On her own behalf
Toyota Motor Manufacturing ) Ted J. Kovacs, Counsel
Canada, Respondent )
1The purpose of this Interim Decision is to determine a Request for an Order During Proceedings (“Request”), in which the applicant seeks production of further documents. It also addresses an outstanding Request in which the applicant had sought an order requiring the respondent to disclose contact information for a number of proposed witnesses.
2For the reasons that follow, the Requests are denied at this stage of the proceeding. The Tribunal will schedule a two day in-person hearing to address the merits of the Application. It will also conduct a case management meeting in advance of the hearing to provide further direction to the parties.
3The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against her in employment based on disability. The applicant also alleges reprisal or threat of reprisal.
4The applicant has filed detailed allegations in support of the Application. In essence, she argues that she raised a number of health and safety issues. She states that she was harassed by other employees because of these health and safety complaints and that she was reprised against when, shortly afterwards, her performance was reviewed and she received negative feedback. The applicant also alleges that the respondent failed to investigate her complaints of harassment and that it failed to accommodate her disability.
5The respondent has filed a Response in which it denies the allegations of discrimination. The respondent argues that the applicant’s allegations of harassment and reprisal relate to the fact that she raised safety issues and are not based on any Code-related ground.
6The applicant filed a Reply in which she states, among other things, that the alleged harassment and reprisals were based on her gender.
7The parties participated in a mediation on June 23, 2011. The mediation did not result in a settlement agreement.
8The Tribunal has issued three Interim Decisions that address other preliminary issues in this matter. In Interim Decision 2011 HRTO 2206, the Tribunal denied the applicant’s Request for interim remedy. In Interim Decision 2011 HRTO 2022, the Tribunal granted (in part) the applicant’s Request to amend the Application. It directed the respondent to file an amended Response and to produce certain documents to the applicant. In Interim Decision 2011 HRTO 2305, the Tribunal granted the applicant’s Request to amend the Application and her Request for production of a training video. Further, at paragraph 24, the Tribunal wrote:
The applicant’s Request for an order directing the respondent to disclose contact information of proposed witnesses is denied at this stage of the proceeding. By January 13, 2012, the applicant must deliver to the respondent and file with the Tribunal a summary of the expected evidence of these proposed witnesses. By January 30, 2012, the respondent must advise the applicant and the Tribunal whether it is in possession of contact information for the proposed witnesses and whether, if directed to do so by the Tribunal, it is in a position to deliver summonses to these individuals.
9The applicant did not file a summary of the expected evidence of witnesses by January 13, 2012, as directed. On January 30, 2012, counsel for the respondent wrote to the Tribunal and copied the applicant. He asked that the applicant’s request for an order requiring the respondent to disclose contact information for particular individuals should be denied. Later in the day on January 30, 2012, the applicant filed a summary of the expected evidence of five proposed witnesses.
10On January 24, 2012, the applicant filed a further Request. She is seeking production of the following:
a) Statistics establishing the number of new hires, the number of persons on medical placement transfers from April 2010 to present, and the number of persons in both plants who applied for open positions;
b) The respondent’s accommodation policy; and
c) An accident report completed regarding the applicant’s lower back injury prior to June 30, 2009 as well as functional ability forms filled out for 2009 (this should be a NP) The respondent objects to the Request and argues that it is premature. It states that a Notice of hearing has not yet been issued and that its disclosure obligations have not yet been triggered under the Tribunal’s Rules of Procedure (“Rules”). It argues that the statistics requested by the applicant are not arguably relevant to the Application.
DECISION
11I accept the respondent’s argument that the Request for further production is premature, given that the Notice of Hearing has not yet been issued and that the parties’ disclosure obligations under the Rules have not yet been triggered. For this reason, the Request is denied at this stage of the proceeding. It is not, at this point, necessary for me to determine whether the documents and particulars sought are arguably relevant to the proceedings.
12The respondent’s request to dismiss the applicant’s request for contact information based on the applicant’s non-compliance with timelines is denied. However, it is not clear to me that the evidence of all of the witnesses proposed by the applicant is relevant or will be necessary or appropriate in the circumstances. In light of this and given the early stage of the proceeding, I find that it is not appropriate to require the respondent to provide contact information for the proposed witnesses at this time. However, within two weeks of this Interim Decision, the counsel for the respondent must nevertheless advise the applicant and the Tribunal whether it is in possession of contact information for the proposed witnesses.
13For all of these reasons, the applicant’s Requests are denied.
14The Tribunal will schedule a two day in-person hearing to address the merits of the Application. Once the time frames (as set out in the Tribunal’s Rules of procedure and summarized in the Notice of hearing) for complying with disclosure obligations has elapsed, the Tribunal will schedule a two hour case management meeting by telephone conference to provide further direction to the parties and to address outstanding preliminary issues.
15I am not seized of this matter.
Dated at Toronto, this 13th day of March, 2012
”signed by”
___________________________________
Michelle Flaherty
Vice-chair