Powell v. Sans Sole Tanning Salon Inc., 2012 HRTO 964

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley Powell Applicant

-and-

Sans Sole Tanning Salon Inc. and Eric Chiodi Respondents

interim decision

Adjudicator: Ena Chadha Date: May 11, 2012 Citation: 2012 HRTO 964 Indexed as: Powell v. Sans Sole Tanning Salon Inc.

BACKGROUND

1The Applicant filed an Application on April 27, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging sex discrimination, sexual solicitation and/or advances and reprisal with respect to employment.

2The Application was initially filed only as against the individual respondent, Eric Chiodi, who is identified in the narrative as the owner of Sans Sole Tanning Salon Inc., the tanning salon where the applicant worked. The applicant alleges that the individual respondent subjected her to sexual harassment and reprisal.

3The individual respondent filed a Response on July 8, 2011, wherein he identifies himself as the President of Sans Sole Tanning Salon Inc., the corporate employer. The individual respondent denies the allegations and alleges that the applicant demonstrated a negative attitude and poor work performance. With his Response, the individual respondent also filed a Request for an Order During Proceedings stating that the identity of the respondent is inaccurate and asking that the Application be amended to reflect the employer, Sans Sole Tanning Salon Inc., as the proper respondent to the Application.

4By way of Interim Decision, 2012 HRTO 459, dated March 12, 2012, the Tribunal added Sans Sole Tanning Salon Inc. (the "Salon") as a party to the Application. The Tribunal required the Salon, within seven days of the date of the Interim Decision, to write to the Tribunal confirming whether or not it adopted the individual respondent's Form 2 Response or sought to file a separate Response. The Tribunal received no correspondence or communications from the Salon in response to the Interim Decision.

DISCLOSURE OBLIGATIONS

5On January 27, 2012, the Tribunal issued a Notice of Confirmation of Hearing ("Notice of Hearing") confirming that a hearing in this matter is scheduled for August 30-31, 2012. The Notice of Hearing stated that pursuant to the Tribunal's Rules of Procedure ("Rules"), the parties were required to exchange all arguably relevant disclosure within 21 days of the Notice (Rule 16). The Notice of Hearing also indicated that parties are required to provide to each other and the Tribunal with copies of all hearing documents, witness lists and summary of witness evidence on or before July 16, 2012 (Rule 17).

6On February 24, 2012, the respondents filed a Statement of Delivery confirming that they provided the applicant with a copy of all arguably relevant documents.

7On March 14, 2012, the respondents filed a Request for an Order During Proceedings seeking disclosure of (i) the applicant's personal Facebook wall from September 2010 to June 2011, (ii) the applicant's Record of Employment from her previous employer and (iii) particulars with respect to the applicant's remedial claim.

8The applicant has not communicated or corresponded with the Tribunal in regards to her obligations to provide arguably relevant disclosure as set out in the Notice of Hearing. The applicant has also not filed any submissions with respect to the respondent's request for disclosure.

ANALYSIS

9Rule 16 and 17 of the Tribunal's Rules establish a structure for pre-hearing disclosure of arguably relevant documents, exchange of documents intended to be relied upon at the hearing and a summary of expected witness evidence. Rule 1.7(p) of the Tribunal's Rules states that in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party to produce any document and information.

10As such, the Tribunal may order pre-hearing disclosure in order to ensure compliance with the obligations under the Rules. It is well-established that a party seeking production of documents must demonstrate that the information is "arguably relevant" to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220.

11The "arguable relevance" threshold has been described as "not a particularly high bar". See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, at paragraph 8, and the cases cited therein. While "arguable relevance" may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal in McKay, supra, explained the analytical approach to assessing "arguable relevance" as follows, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action's facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of "arguable relevance", the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

12The second step of the disclosure analysis requires consideration of other interests, such as confidentiality and fairness. Documents meeting the "arguable relevance" threshold may not be disclosed or may be subjected limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1, the Tribunal noted that "(d)ocuments which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing" at paragraph 10. Consequently, in assessing the disclosure requests, the Tribunal must also consider whether fairness in the circumstances requires that production be subject to certain limitations, terms or conditions, in particular to address such matters as privilege or confidentiality.

Applicant's Arguably Relevant Disclosure

13As previously noted, the applicant has failed to indicate whether or not she has any arguably relevant disclosure. Pursuant to Rule 16, all arguably relevant documents in the possession of a party must be disclosed to other parties no later than 21 days after the Notice of Hearing.

14There may be serious consequences for failing to comply with the Tribunal's disclosure obligations. The applicant's attention is drawn to Rule 5, which provides that the Tribunal may refuse to allow a party to present evidence or make submissions about facts or issues which were not disclosed in accordance with Rules 16 and 17.

Respondents' Request for Disclosure

15The respondents seek disclosure of (i) the applicant's personal Facebook wall from September 2010 to June 2011, (ii) the applicant's Record of Employment from her previous employer and (iii) particulars with respect to the applicant's remedial claim.

16The respondents have provided no explanation or submissions regarding the basis upon which they assert that items (i) and (ii) are arguably relevant to this proceeding. As such, the Tribunal requires further information with respect to the respondents' requests and clarification as to the reasons why the respondents believe the information contained in items (i) and (ii) are arguably relevant.

17With respect to item (iii), the respondents note that the applicant failed to fully particularize her remedial claim in the Application. I agree with the respondents. It is important to fully articulate the details and the basis for any compensation claim in order to ensure that the responding party fully understands the remedies being sought.

18It appears that the applicant is seeking compensation from the respondents with respect to income loss; however, the applicant has failed to indicate the timeframe and the quantum of her claim. The applicant also did not indicate whether or not she was seeking any non-monetary and future compliance remedies.

19The Tribunal requires the applicant to provide full particulars with respect to the remedies she will be seeking at the hearing and directs that the information regarding her remedial claims be provided promptly.

ORDERS

Form 2 Response

20In accordance with the previous Interim Decision, the respondent Salon was required by to confirm with the Tribunal by March 19, 2012, whether it sought to file a separate Response. The Salon did not indicate an intention to file a separate Response and the time for doing so has elapsed.

21As such, the Tribunal will proceed on the basis that the Form 2 Response filed on July 8, 2011, constitutes the Response of both respondents.

Applicant's Arguably Relevant Disclosure & Remedial Claims

22Within 14 days of the date of this Interim Decision, the applicant must deliver to the respondents a list and copy of all arguably relevant documents in her possession and an itemized list of her remedial claims. The applicant must file with the Tribunal a copy of the list of arguably relevant documents, the itemized list of her remedial claims and a Statement of Delivery confirming the materials were sent to the respondents.

Respondents' Request for Disclosure

23With respect to the respondents' request for disclosure of items (i) and (ii), the Tribunal orders as follow:

a) within 21 days of the date of this Interim Decision, the respondents are required to write to the Tribunal, copied to the applicant, explaining the basis for their request, why the documents are arguably relevant and any position with respect to issues of confidentiality;

b) within 21 days of the receipt of the respondents' disclosure submissions, the applicant is required to file submissions in response to the request; and

c) The Tribunal will consider the parties' submissions, and may determine any of the preliminary issues based on the parties' written submissions, and/or may schedule future steps.

24I am not seized of this matter.