Sandra Cristiano v. Grand National Apparel Inc., 2012 HRTO 627

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Cristiano

Applicant

-and-

Grand National Apparel Inc.

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 26, 2012

Citation: 2012 HRTO 627

Indexed as : Cristiano v. Grand National Apparel Inc.

1This is an Application made under s. 34 of the Ontario Human Rights Code, dated February 2, 2011. The applicant alleges that she experienced discrimination in employment because of disability and reprisal contrary to ss. 5, 8 and 9 of the Code, arising out of her employment and the termination of her employment with the respondent company.

2The purpose of this Interim Decision is to address a Request for Order made by the applicant dated March 12, 2012, seeking production of certain documents from the respondent. I also will address certain case management matters in anticipation of the hearing, which is scheduled for April 10 and 11, 2012.

Applicant’s request for production

3The applicant first seeks a printout of certain documents that she is alleged to have deleted from her work computer and placed in her recycle bin on October 13, 2010. The respondent relies upon this conduct as the primary reason for the termination of the applicant’s employment. In addition to the documents themselves, the applicant seeks the following details for each of these documents: date created, last date accessed, last date modified, and size of file. The purpose for which the applicant seeks production of these documents and data is to show the irrelevance of these documents for the future operating business of the respondent company.

4The respondent takes the position that the printing of these documents is not relevant to the matter at issue in this proceeding, which is whether the applicant’s employment was terminated because of disability. The respondent states that its evidence at the hearing in this matter will be that its discovery of the deletion of these documents led to its decision to seek an adequate explanation from the applicant for this conduct, failing which a decision had been made to terminate her employment. The respondent states that the documents themselves were not reviewed or relied upon by the individual who made this decision. Rather, reliance was placed upon the fact of the deletion of files and the general nature and large number of documents that are alleged to have been deleted by the applicant on October 13, 2010. The respondent states that it does not currently have the other data sought by the applicant regarding these files.

5It is not clear to me at this stage of the proceeding whether production of the documents themselves is arguably relevant to the issues before this Tribunal. The respondent’s concern, as stated in its Response, is that the applicant had deleted all of the templates used for the company’s business dealings with Wal-Mart on both her office computer and on the Wal-Mart site, and that as a result of the deletion of these files, the respondent was required to recreate much of this information which resulted in service delays and additional costs. In her Reply, the applicant states that other respondent employees had access to the files on the Wal-Mart website and that her own files were copied to at least one other employee of the respondent company. She states that she does not specifically recall deleting these files on October 13, 2010, but if she did so, it was a matter of general housekeeping in order to increase the available space on the server.

6At this point, it is not clear to me specifically which of the deleted files the respondent states were the cause of the service delays and extra costs or to what extent production of these files would assist in resolving the issues before me. In my view, the applicant can testify as to her recollection of her own actions on October 13, 2010, and her general practice in terms of housekeeping and can testify generally about the nature of the files listed on the respondent’s productions as having been deleted. The respondent witnesses also can testify as to the basis of the company’s concern regarding the deletion of these files and the impact on its business. If during the course of hearing the evidence it becomes clear to me that the production of some of these documents is relevant to a matter at issue in this proceeding, I am prepared to re-visit the issue of the production of some of this material and will afford the applicant an opportunity to address any further material as may be ordered to be produced as part of her evidence in reply.

7The applicant also requests production of vendor agreements between Wal-Mart and a company called Supreme International Co. Canada Ltd. (“Supreme International”) and between Wal-Mart and the respondent company. It appears from the material before me that Supreme International may be a predecessor or related company to the respondent company, although the precise relationship between these two entities is not entirely clear. The respondent does not dispute that in August 2010, Supreme International ceased as the vendor to Wal-Mart and the respondent company became the new vendor with respect to private label products under the George brand. The relevance of the agreements sought by the applicant is based upon her assertion that documents created with Supreme International as vendor are not relevant to documents created with the respondent company as vendor, and hence that documents created prior to the change in vendor in August 2010 did not continue to be relevant to the respondent company’s operations. It seems to me that this issue can be explored at the hearing without necessity for disclosure of the actual vendor agreements themselves. Accordingly, this aspect of the applicant’s request is denied.

8Finally, the applicant seeks production of all letters and any warning letters given to her during her employment with the respondent company and/or with Supreme International. The respondent states that there were no warning letters or disciplinary letters provided to the applicant during her tenure and prior to the termination of her employment, and as such there are no documents to respond to this request. As the Tribunal cannot order production of documents which do not exist, this aspect of the applicant’s request is denied.

9For these reasons, the applicant’s request for production is denied, subject to the ability to re-visit the issue of production of some of the deleted files based upon the evidence given at the hearing.

Case management matters

10The respondent has filed a Request for Order dated March 23, 2012 seeking production from the applicant of all information and documentation related to the applicant’s efforts to mitigate her damages from the date of termination on January 31, 2011, to the date of hearing, and has specified the nature of the information and documents sought. The respondent had previously requested this material from the applicant by e-mail dated March 20, 2012, to which the applicant replied by indicating that she was meeting with a lawyer on March 30, 2012, and needed more time to respond to the request.

11Under the Tribunal’s Rules, the normal time for responding to this request would extend to the first day of hearing, which obviously is not helpful. I note that the type of information and documentation sought by the respondent is not unusual in a case where the applicant is seeking compensation for lost income, and this Tribunal typically will make an order for production of this type of documentation if required. However, I also am mindful that I have not yet received the applicant’s submissions in response to this request.

12As a result, in order for this matter to proceed in a timely fashion, I am directing the applicant to compile the information and documentation sought to review with the lawyer when she meets with that individual on March 30, 2012. To the extent that no objection is taken to the production of this material, this would enable the material to be provided to the respondent forthwith and in any event by no later than Monday, April 2, 2012. To the extent that the applicant objects to the production of any of this material, she is directed to serve and file her Response to Request for Order (Form 11) by no later than April 2, 2012, together with any material that she does not object to producing.

13I also note from submissions filed by the respondent in response to the applicant’s request for production, that the respondent intends to bring a preliminary motion at the outset of the hearing to have the Tribunal first decide the issue of whether the applicant had a disability at the relevant time before requiring the respondent to defend its decision to terminate her employment. I am prepared to hear brief submissions on this request before hearing the parties’ evidence, but all parties should come to the hearing on April 10, 2012 prepared to present their cases in full.

14Finally, I note from the material filed that the applicant made a claim to the Employment Standards Branch which was denied by an Employment Standards Officer decision dated October 19, 2011. This raises the issue of whether the substance of the Application before this Tribunal already has been appropriately dealt with in another proceeding, within the meaning of s. 45.1 of the Code. In this regard, I direct the parties’ attention to this Tribunal’s case law which has held that a proceeding before an Employment Standards Officer is a “proceeding” within the meaning of s. 45.1 of the Code and adopting and applying the principles articulated by the Supreme Court of Canada in the Figliola decision: see for example Pinheiro v. Maritz Canada, 2012 HRTO 540, Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443, and Rampersaud v. Primary Response Inc., 2011 HRTO 2172.

15I also direct the parties’ attention to the Tribunal’s decision in Qiu v. Neilson, 2009 HRTO 2187, which held that factual findings made in another proceeding may be regarded as having appropriately addressed the substance of an application before this Tribunal, if those factual findings deprive the applicant of the factual underpinning required to support the alleged violation of the Code.

16All of the Tribunal’s decisions are available to the parties at the following web address: http://www.canlii.org/en/on/onhrt/.

17At the outset of the hearing on April 10, 2012, I will want to hear submissions from the parties as to whether all or part of the Application should be dismissed pursuant to s. 45.1 of the Code, on the basis that the substance of the Application already has been appropriately dealt with by the Employment Standards Officer’s decision.