Lazareva v. York Region (Regional Municipality), 2012 HRTO 660

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Svetlana Lazareva

Applicant

-and-

The Regional Municipality of York Region, Janet Vandenberg and Pat Richards

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 29, 2012

Citation: 2012 HRTO 660

Indexed as: Lazareva v. York Region (Regional Municipality)

WRITTEN SUBMISSIONS

Svetlana Lazareva, Applicant ) Self-represented

The Regional Municipality of York Region, ) Janet Vandenberg, and Pat Richards, ) Wesley Booker, Counsel Respondents )

Ontario Nurses Association ) Colin Johnston, Counsel

Introduction

1The applicant, Svetlana Lazareva, 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”). The Application alleges discrimination in employment on the basis of ancestry, place of origin, citizenship, ethnic origin and family status. This Interim Decision addresses the applicant’s request for the production of documents from the respondents and the Ontario Nurses Association (“ONA”), a non-party to the Application.

2The Application makes two principle allegations. One, that the applicant was subject to discriminatory treatment by her co-workers and manager while working on a temporary contract as a public health nurse in a breastfeeding clinic. Two, the respondents’ decision to consider the applicant as an external candidate and therefore not eligible for an internal job competition to fill a permanent part time job in the breastfeeding clinic (Job Competition #10078) was motivated by the applicant’s ancestry, place of origin, citizenship, ethnic origin and family status. This job was posted in February 2010 and won by Karen Hung.

3On March 5, 2012 the applicant filed a Request for an Order during Proceedings (“RFOP”) seeking the production of a wide range of documents from the respondents and ONA. The RFOP does not provide submissions on why the respondents and ONA should disclose these materials and why these documents might be arguably relevant.

4The respondents and ONA have filed separate responses to the applicant’s RFOP. The respondents and ONA have agreed in their responses to provide some of the requested documents. They have also both made submissions as to why they should not be required to disclose other documents.

THE APPLICANT’S REQUEST FOR DOCUMENTS FROM THE RESPONDENTS

The Requested Documents

5The applicant identifies 15 documents, or sets of documents, in her RFOP that she is seeking from the respondents. They are:

1. Information about all positions the Applicant applied for and was invited for interview and/or was interviewed including but not limited to:

   • Job posting
   • Job description
   • Number of applicants for the position
   • Names of applicants
   • Resume and Cover letter of applicants
   • Scoring of candidates in interview process
   • Notes of interview panel for each candidate
   • Any other info employer relied on

2. The file of Svetlana Lazareva

3. Copy of the email sent to Janece Kristman cancelling an interview

4. Information on posting # 10078

   • Job description
   • Number of applicants for the position
   • Names of applicants
   • Resume and Cover letter of applicants
   • Scoring of candidates in interview process
   • Notes of interview panel for each candidate
   • Any other info employer relied on

5. Information about the candidate, Karen Hung interview for the Temporary Full-Time position at Breastfeeding Clinic #9425:

   • Resume and Cover letter
   • Scoring in interview process
   • Notes of interview panel
   • Any other info employer relied on

6. Karen job status and hours worked since March 2010 to present time supported by the team calendar.

7. Proof of the request made by manager to extend the temporary position of the Applicant made in January-February 2010.

8. Work assignments, job status and hours worked for Pat Richards and Marie Wright for 2010 year.

9. Information on education provided to the staff regarding bill 168 under OHSA including but not limited to:

   • Lengths
   • Learning points
   • Learning plan
   • Resources used
   • Maximum number of participant on the session

10. Information on training Respect in the workplace including but not limited to:

    • Lengths
    • Learning points
    • Learning plan
    • Resources used
    • Maximum number of participant on the session

11. Regional Policy and Procedurals on posting a position.

12. Applicant’s professional development activities including external courses with the cost.

13. Regional Policy and Procedures on new staff orientation

14. Job description of Manager of Breastfeeding Team position

15. Number of positions for PHN posted for period of September 1 2009 to March 1 2010.

The Respondents’ Submissions

6In their response the respondents submit that they will disclose the documents the applicant describes under numbers 2, 7, 9, 10, 11, and 12 of her RFOP as they agree that these documents may be arguably relevant. The respondents submit that the documents described under numbers 13, 14 and 15 are not arguably relevant but that they will disclose these documents out of an abundance of caution.

7The respondents submit that they are not clear as to the email the applicant refers to under number 3 and asks the applicant to provide further clarification so that it can consider this request. I leave it to the parties to continue to try to resolve this issue. If the parties are unable to come to an agreement about this email, the applicant can file a further RFOP on this matter and this decision is without prejudice to her right to do so.

8With respect to the documents identified under numbers 1, 4, 5, 6 and 8 the respondents submit that these items are not arguably relevant to the allegations set out in the Application and they object to having to produce these documents.

9The respondents submit that the applicant was denied the opportunity to compete as an internal candidate in one specific job competition (job competition #10078). They submit that the documents and information requested in under number 1 about participants in other job competitions are not arguably relevant to the issues pled in the Application. They submit that reviewing applications and interview evaluations related to other job competitions will not assist the Tribunal in determining whether the applicant was wrongly denied access to competing as an internal candidate for the position offered in job competition #10078 nor in determining whether the applicant was subject to discriminatory treatment while she worked at the breastfeeding clinic.

10The respondents submit that the documents outlined under number 4 are not arguably relevant. While job competition #10078 is central to the Application, they submit that the issues raised with respect to it in the Application are in relation to the timing of the expiry of the applicant’s temporary contract and the timing of the job posting. They therefore argue that the information the applicant wants in relation to how the subsequent internal job competition was conducted for which she was determined not to be eligible is not arguably relevant.

11The respondents submit that the documents requested under number 5 are not arguably relevant given that that the Application raises no allegations in reference to the temporary part time position that was won by Karen Hung (a position the applicant did not apply for). The respondents submit that this information will not help the Tribunal determine the issues that are raised in the Application.

12The respondents submit that information requested in numbers 6 and 8 about Ms. Hung, Ms. Richards and Ms. Wright’s employment including job status and hours of work after March 2010 is not arguably relevant and will not assist the Tribunal in determining whether the applicant should have been considered as an internal candidate in February 2010 and whether she was subject to discriminatory treatment while working prior to this at the breastfeeding clinic. It is noted that Pat Richards was the manager of the breastfeeding clinic while the applicant was there and Marie Wright succeeded Ms. Richards.

DECISION

13The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be arguable relevance in that the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. See Lampi v Princess House Products Canada Ltd, 2008 HRTO 1.

14In my view the applicant has not shown that there is a nexus, a connection, between the documents she has requested under numbers 1, 4, 5, 6, and 8 and the allegations she has raised in the Application with one particular exception. Consequently, the Request for these documents is denied except for the one exception detailed below.

15It has not been demonstrated that information about other job competitions that are referred to under number 1 is arguably relevant to whether the applicant’s treatment in relation to job competition #10078 was discriminatory. I have no information or submissions about the other job competitions referred to under number 1 and their possible relevance to the issues raised in the Application. The applicant has also not shown how the competition for a temporary position in the clinic won by Ms. Hung referred to under number 5 is arguably relevant to the allegations of discriminatory treatment. I do not find details relating to Ms. Hung, Ms. Richards and Ms. Wright’s work from March 2010 and later, that are referred to under numbers 6 and 8, are relevant to how the applicant was treated in February 2010 and earlier.

16I also find that the applicant has not established how documents related to how other candidates for job competition #10078 were considered and evaluated, which are identified under number 4, are arguably relevant. The issues raised in the Application are in relation to the timing of the job posting and the ending of the applicant’s temporary contract and the fact that the applicant was not considered to be an employee of the respondent Municipality at the time of the job competition. It is not clear how the manner in which this job competition was conducted, which the applicant had no involvement with, is arguably relevant to her allegations of differential treatment.

17That said, I do see there is some information related to the job competition #10078 that the applicant requested that may be arguably relevant. The respondents maintain that the applicant was not considered for the internal job competition because her temporary contract had come to an end. I am of the view that some of the materials requested by the applicant under number 4 could establish whether those persons who were selected for an interview for job competition #10078 were clearly eligible (i.e. working for the respondent Municipality) at the time of the job competition. This information is arguably relevant.

18Consequently, the respondents are directed to provide copies of the resumes of those persons who were interviewed for job competition #10078 in order to indicate their employment status at the time of the job posting. The respondents are directed to redact personal information including the name, address, telephone numbers, date of birth, SIN numbers or any other personal identifier of these individuals if this information appears in their resumes. The only personal identifier which should not be redacted is information related to the person’s job status with the respondent Municipality (e.g. employee number). The respondents may disclose further documentation to corroborate the employment status of those persons who were interviewed if they wish.

THE APPLICANT’S REQUEST FOR DOCUMENTS FROM ONA

The Requested Documents

19The applicant requested as part of her RFOP that ONA provide her with:

1. The collective agreement for the Region of the Municipality of York that was in place at the time she was employed;

2. A report from ONA in relation to a complaint made by the applicant;

3. A research paper by Das Gupta on racism in nursing;

4. Information of ONA’s position on timelines for reposting vacant positions;

5. Information of any complaints or grievances regarding part time positions in the breastfeeding clinic during the 2009 and 2010 calendar years including but not limited to names of complaining members, nature of the issue, outcomes and decisions.

ONA’s Submissions

20ONA submits that it has provided the applicant with the collective agreement and the research paper she requested. ONA submits that it has no formal position on timelines for reposting vacant positions as this issue is addressed differently in different collective agreements.

21ONA opposes the applicant’s request that it release its report arising from a complaint made by the applicant. ONA submits that the report in question is an internal memo produced by an ONA staff member summarizing a grievance made by the applicant which includes a legal opinion from an ONA litigator as to the merits of the applicant’s grievance. ONA submits that this document was produced as part of the grievance-arbitration process and is privileged.

22ONA also opposes the request that it produce other grievances or complaints made by ONA members about the breastfeeding clinic on the basis of relevance and privilege. With respect to relevance it submits that there is nothing in the Application to suggest that the respondents were involved in a pattern of discrimination and therefore there is no nexus between documents about the experiences of other ONA members and the issues raised in the Application. ONA further submits that with respect to privilege, the law has recognized that communications between members and their union are privileged, as the union is the legal representative of its members. ONA submits that if it is compelled to produce this information to the applicant it will have to provide it to the respondents and that this undermines the rights of ONA members to freely communicate with their union without fear this information gets shared with their employer. ONA further submits that it has conducted a summary review that suggests that there have been no grievances or complaints from members involving allegations of discrimination at the breastfeeding clinic

DECISION

23The Tribunal has the power under its Rules of Procedure to order the production of documents from non-parties to a proceeding: Rule 1.7(p). However, I am not prepared in this case to allow the applicant’s requests for a specific report from ONA and information related to complaints and grievances made by other employees about the breastfeeding clinic.

24I accept ONA’s position that it should not be required to provide the internal report it prepared for the purposes of assessing a grievance filed by the applicant. In my view there is a legitimate claim of privilege over this document. See Brackenbury v. Prism, 2010 HRTO 359. I further find that the applicant has not demonstrated the connection between the information she is requesting about possible complaints and grievances involving other ONA members and the issues raised in the Application. In my view the applicant has not demonstrated that these documents are arguably relevant. The applicant has not raised issues of systemic discrimination nor alleged in her Application that the respondents (or ONA) have been involved in broader discriminatory practices. I note again that I have no submissions from the applicant to indicate on what basis these documents may be arguably relevant.

25ONA’s claim of privilege over grievances and complaints related documents is potentially more complicated as it may, in my view, depend on the nature of the specific documents being requested. However, I do not need to rely on the claim of privilege as I am prepared to deny the applicant’s claim for documents involving other ONA members from ONA on the basis that the applicant has not demonstrated that they are arguably relevant.

26In summary, the applicant’s request for documents from the respondents and ONA that have not already been provided is denied save for one exception. The respondents are directed to provide resumes for persons who were selected to be interviewed for job competition #10078 only for the purposes of indicating their employment status at the time the job competition was posted. The respondents are directed to redact the personal identifiers outlined in paragraph 18 above.