HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Annette Shilling
Applicant
-and-
1104496 Ontario Inc. o/a 2010 Kawartha Club Bingo
and Doug Robinson
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Shilling v. Kawartha Club Bingo
APPEARANCES
Annette Shilling, Applicant ) Lori Mishibinijima, Counsel
1104496 Ontario Inc. o/a Kawartha Club Bingo ) Geoffrey Ryans, Counsel
and Doug Robinson, Respondents )
1The hearing in this Application commenced on April 17 and continued on April 18 and 19, 2012. Further hearing days have been scheduled by the Tribunal. This Interim Decision addresses the respondents’ request for the applicant to produce various documentation about “income”.
2The applicant alleges discrimination in employment on the grounds of race, colour, ancestry, place of origin, sex, sexual solicitation and reprisal. She was terminated from her employment with the corporate respondent in August 2009 and is seeking, as one of her remedies, special damages in the amount of $57,005 comprised of lost wages. She asserts that she has not been able to work, for medical reasons, since her termination in August 2009.
3The applicant was cross-examined about documentation that was entered as an exhibit during the applicant’s examination-in-chief. Specifically she was asked questions about what is marked as Exhibit 4, Tabs 17 and 18, and the words “occasional work 50.00/wk (depending on shift availability)” found at Tab 17 and four entries of “work 50” found at Tab 18 which is included in the income total on that page. She was also questioned about the word “work” appearing in her Facebook postings, which were also entered as an exhibit. The applicant testified during her cross-examination that she receives an honourarium as a result of volunteer work with Niijkiwendidaa Anishnaabekwewag Services Circle (“the Circle”) and monies that she receives from her sister for cleaning services to explain the inclusion of these monetary amounts. The applicant testified during her examination-in-chief and confirmed in her cross-examination, that she is in receipt of Ontario Works (“OW”).
4During the applicant’s cross-examination, and based upon the applicant’s evidence, counsel for the respondents requested production of copies of the applicant’s “income documentation” including: T4’s, an accounting of the honourarium she receives, the amount she receives from cleaning services, and the amounts she receives from OW.
5A conference call hearing was scheduled pursuant to a Case Assessment Direction (“CAD”) dated April 20, 2012 in which the parties were directed by the Tribunal to file any additional documentation, case law or facts, upon which they intended to rely, by April 27, 2012. The conference call itself was scheduled for April 30, 2012 pursuant to a Notice of Conference Call dated April 24, 2012. The call was held on April 30, 2012 and all parties participated. Prior to the hearing, the respondents filed materials, but the applicant did not.
6The respondents’ counsel submits that the applicant should be ordered to produce the income documentation given the documents found at Tabs 17 and 18 of Exhibit 4, as well as the inclusion of the word “work” on the Facebook postings at Exhibit 9 and based upon the applicant’s answers during her evidence on these exhibits. The respondents submit that the applicant is seeking over $50,000 as special damages and has asserted that she has been unable to work for medical reasons since her termination in August 2009. The respondents submit that the income documentation is relevant to these proceedings first to assess the quantum of special damages in the event that the Application is successful and second with respect to the applicant’s claimed inability to work during the relevant period.
7The applicant’s counsel submits that the applicant has not “worked” since her termination, which is why “work” documentation was not disclosed prior to the hearing date. Since the respondents’ production request, the applicant’s counsel requested, and received, a letter from the executive director of the Circle explaining that it gave the applicant a “stipend” for meals and transportation from December 1, 2010 to May 31, 2011 when she volunteered at the Circle. The applicant’s counsel stated that she was prepared to disclose that letter to the respondents’ counsel and the Tribunal. Further, the applicant signed a Community Placement Volunteer Agreement with OW (“the Volunteer Agreement”) for the purpose of gaining general office experience on a volunteer basis that can be applied to work experience at a later date.
8The applicant’s counsel also stated that since the respondents’ production request she had requested and received an email from the applicant’s sister stating that she gives the applicant money when she requires it, and, amongst other things, gives the applicant the opportunity to do chores around her house such as laundry, looking after her children, and cleaning. The applicant’s sister does not record how much money she gives to her sister. The applicant’s counsel did not have instructions from the applicant about producing this email to the respondents and the Tribunal, but noted that the names of a child or children were referenced in the email and that if ordered to be produced that their names be redacted.
9The applicant has filed income tax returns however, the applicant’s counsel submits, they do not disclose income being received and do not show that the applicant is receiving OW.
10With respect to the amounts received from OW, the applicant’s counsel submits that this information is not relevant. The applicant’s request for special damages is without the Tribunal quantifying deductions, consistent with the Tribunal’s case law, including Tofflemire v. Metro (Windsor) Enterprises, 2010 HRTO 60, and the applicant’s counsel submits that the Tribunal does not have to the jurisdiction to quantify the deductions required under legislation other than the Code for repayment of statutory benefits. Further it is the applicant’s, not the respondents’, responsibility to pay back any amounts owing to OW.
Analysis
11The 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 documentation being sought and issues in dispute before the Tribunal. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8 and Buchanan v. Intact Financial Corporation, 2011 HRTO 1962 at para. 4.
12Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi, supra at para. 9.
13In the Application, the applicant wrote that she was seeking $19,270 representing ongoing loss of wages. At the beginning of the hearing, the applicant sought to increase the amount of special damages being claimed to $57,005, which was granted. She has testified that she has been in receipt of OW and has been unable to work since her termination in August 2009. She also testified that she receives an honourarium from the Circle and cleans her sister’s house.
14The documentation marked as Exhibit 4, Tabs 17 and 18, as well as the exhibit containing the applicant’s Facebook postings, all reference the words “work” or “income”. The applicant also testified that she was in receipt of OW. As a result of the wording on these exhibits and the applicant’s testimony, I find that the documents requested by the respondents to be arguably relevant to this proceeding.
15Accordingly, the applicant is directed to produce forthwith to the respondents’ counsel:
an accounting of the honourarium she receives (which could include the letter from the Circle’s executive director and which the applicant’s counsel has agreed to produce);
any T4s received by the applicant from the date of her termination to the date of this Interim Decision;
the amounts she receives from cleaning services, including the email from her sister with the names of any children redacted;
the amounts she receives from OW; and
the Volunteer Agreement into which she entered with OW.
16Whether or not these documents will be admissible at the hearing will depend on whether or not counsel will seek to question the applicant upon them. If the respondents’ counsel seeks to rely upon any of the ordered documentation, then it is required to identify that to the applicant’s counsel and the Tribunal and file such documentation with the Tribunal no later than one week prior to the next scheduled hearing date.
Dated at Toronto, this 7th day of May, 2012.
“Signed by”
Alison Renton
Vice-chair