Castillo v. The Travel Corporation, 2013 HRTO 1014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Castillo

Applicant

-and-

The Travel Corporation, Russell Rodrigues, Vianna Zanuldin and Teija Vakkuri

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 6, 2013

Citation: 2013 HRTO 1014

Indexed as: Castillo v. The Travel Corporation

APPEARANCES

Carol Castillo, Applicant

Cecil Norman, Representative

The Travel Corporation, Russell Rodrigues, Vianna Zanuldin and Teija Vakkuri, Respondents

Thomas Stefanik, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of family status and disability. This Interim Decision addresses two Requests For an Order During Proceedings: one filed by the applicant on April 24, 2013 and one filed by the respondent on May 6, 2013. Both requests seek production of documents.

Background

2The applicant was employed by the organizational respondent between January 22, 2007 and October 12, 2011. The applicant identifies herself as suffering from Bi-polar #1 Disorder for which she receives treatment. The applicant also states that her teenage son has an intellectual disability, which has caused mental health issues. The applicant disclosed neither her condition nor her sons until shortly before the organizational respondent terminated her employment, but asserts that the respondents failed to consider her circumstances when she was dismissed. The respondents’ position is that they terminated the applicant’s employment when they discovered she had acted dishonestly, i.e., by attempting to hide improper conduct.

The Applicant’s Request:

3On April 24, 2013, the applicant filed a Request seeking production of the following documents:

a) All electronic personnel and performance files of the applicant;

b) All e-mail communication between the applicant, management and co-workers from September 2, 2010 to October 12, 2011; and,

c) All records showing ratings or rankings, i.e., 360 degree reviews of the applicant from January 22, 2007 to October 12, 2011.

The applicant submitted that she requires these documents to prepare for the upcoming hearing.

4The respondents filed a Response to a Request for an Order on May 6, 2013 opposing the applicant’s Request. The respondents’ overall position was that the applicant did not provide a proper explanation for why the documents in question are needed and the request amounts to a fishing expedition. The respondents submitted that the organizational respondent terminated the applicant’s employment following an incident that occurred in October 2011 and is not relying on progressive discipline to justify the applicant’s dismissal. Accordingly, any documents contained in any performance files and any performance rankings or ratings regarding the applicant have no arguable relevance to any issue in these proceedings. The respondent submitted that the applicant gave no explanation regarding why all e-mail messages between and essentially anyone in the organization, for a lengthy period of time are arguably relevant and that the request amounts to a classic fishing expedition.

Analysis and Decision

5At the pre-hearing stage, the Tribunal will order disclosure of documents if the requesting party establishes they are arguably relevant, i.e., that they may prove or disprove a fact in issue in the dispute. The Tribunal may decline to order disclosure documents that are privileged or raise privacy concerns. See McKay v. Toronto Police Services Board, 2009 HRTO 1220. A finding that a document is arguably relevant does not imply that the document will actually be found to be relevant or admissible at a hearing.

6The applicant provided no indication regarding how any of the documents she seeks are arguably relevant to any issue in dispute in this matter. Based on the material filed to date, the applicant’s performance while employed by the organizational respondent is not in issue; therefore, documents related to her performance are not arguably relevant. The applicant’s request for disclosure of e-mail messages is extremely broad and, again, provides no proper basis on which to conclude that any of the e-mail messages are arguably relevant.

The Respondent’s Request

7On May 6, 2013, the respondent also filed a Request seeking disclosure of the following:

a) Complete copies of the applicant’s income tax returns for 2011 and 2012;

b) Any and all job offers and employment contracts or agreements from and after October 12, 2011 that the applicant has either entered into or has been offered;

c) Any and all documentation in the possession of the applicant with respect to her search for alternate employment; and,

d) Documents representing legal/representation fees together with proof of payment by the applicant.

8The respondent submitted that the applicant seeks compensation for lost wages from October 12, 2011 to the resolution of this Application; therefore, the requested income tax returns are arguably relevant. The respondent submitted that the applicant is obliged to mitigate her losses; therefore, whether she searched for or obtained new employment following her dismissal from the organizational respondent is arguably relevant to the issue of remedy. The respondents also noted that the applicant seeks compensation for the cost of legal representation in these proceedings. Accordingly, the respondents submitted that, without conceding the applicant’s entitlement to costs or the Tribunal’s jurisdiction to award costs, the documents requested regarding the applicant’s legal expenses are arguably relevant.

Analysis and Decision

9As noted above, the test for production of documents at this stage of the proceedings is arguable relevance. The applicant seeks compensation for lost wages following the termination of her employment and is required to mitigate such losses. Consequently, any income she received after October 12, 2011 is arguably relevant to the calculation of damages, if any, as are her efforts to secure new employment and whether she did in fact find another job(s). The Tribunal does not have jurisdiction to award costs. See, M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174. Consequently, the applicant’s legal costs are irrelevant.

Order

10The Tribunal orders as follows:

1. The applicant’s Request is dismissed.

2. Within seven days of the date of this Interim Decision the applicant shall deliver to the respondents the documents described in paragraph 7(a), 7(b) and 7(c), above, and shall confirm delivery of same by filing a Statement of Delivery (Form 23) with the Tribunal.

11Should the applicant fail to comply with this order, then the Tribunal may take any or all of the steps in Rule 5 of the Tribunal’s Rules of Procedure.