Chappell v. Securitas Canada Limited, 2013 HRTO 1032

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Chappell

Applicant

-and-

Securitas Canada Limited and Toyota Motor Manufacturing Canada Inc.

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: June 7, 2013

Citation: 2013 HRTO 1032

Indexed as: Chappell v. Securitas Canada Limited

WRITTEN SUBMISSIONS

Heather Chappell, Applicant

Self-represented

Securitas Canada Limited, Respondent

Daniel McDonald, Counsel

Toyota Motor Manufacturing Canada Inc., Respondent

Ted Kovacs, Counsel

United Steelworkers of America, Local 9597, Intervenor

No submissions

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 sex and family status. This Interim Decision addresses a Request for an Order During Proceedings filed by the applicant seeking production of documents and provides case management direction to the parties.

Background

2Following a summary hearing in this matter the Tribunal issued an Interim Decision, 2012 HRTO 874, in which the Tribunal dismissed the Application against the applicant’s trade union (which was subsequently granted intervenor status) and dismissed several untimely allegations, i.e., those allegations occurring before May 4, 2010.

3The applicant was a Senior Fire Inspection Officer employed by the respondent Securitas Canada Limited (“Securitas”) and worked at the respondent Toyota Motor Manufacturing Canada Inc.’s (“Toyota”) facility in Cambridge Ontario. Following an investigation in February 2011, Securitas concluded that the applicant falsified inspection records regarding fire extinguishers. After being informed of this finding, Toyota exercised its right under its contract with Securitas to have the applicant removed from the facility. The intervenor grieved this decision, but was unable to have the applicant returned to work at the Toyota facility. The applicant alleges that the respondents’ actions leading to her removal from the facility were discriminatory. In Interim Decision 2012 HRTO 874, the Tribunal was unable to conclude that this allegation had no reasonable prospect of success.

The Applicant’s Request

4On April 5, 2013, the applicant filed a Request seeking production of the following documents from Securitas:

a) Copies of all revisions to the Fire Extinguisher Post Orders in the time frame as it relates to this case;

b) Copies of any and all “Coach and Council” (sic) or other disciplinary documents relating to monthly checks and attendance records for Kendal Waite and Ron Rolston and additionally any other Fire Prevention Inspectors regarding monthly checks;

c) The applicant’s personal TMMC note books, which were left in her Team drawer after she was removed from site;

d) Copies of Darren Blewitt’s TMMC note books (as it relates to him alleging (sic) speaking to me regarding fire extinguisher checks and monitoring the applicant’s monthly checks from October 2010 until January 2011);

e) Copies of Leave of Absences (sic) granted for FPI’s Jeremy Howey (to travel to Europe) and Scott Woods (to travel with his band);

f) Copies of any and all disciplinary or “Coach and Council” (sic) relating to Heather Chappell during her employment with Securitas;

g) Copies of any communications between Securitas and Toyota regarding the alleged falsification of documents and subsequent removal; and

h) Copy of Securitas’ letter to Human Resources and Skills Development Canada re Heather Chappell’s EI claim.

In the same Request, the applicant requested production from Toyota of “Copies of all Toyota Team Member Safety write ups relating to missing and/or defective fire extinguishers in the time frame as it relates to this case”. The applicant submitted that the respondents did not provide these documents with the arguably relevant documents that they produced pursuant to the Tribunal’s Rules of Procedure, and submitted that they are very important to her case.

5Securitas filed a Response to Request for an Order on April 19, 2013. Securitas submitted that the applicant’s requests are overly broad and irrelevant to the remaining issues in the proceedings. Securitas also submitted that the applicant failed to explain the arguable relevance of the documents she seeks.

6Turning to the applicant’s specific requests, Securitas stated that it does not have the fire extinguisher post-orders in place during the applicant’s employment. Securitas explained that it destroys outdated post-orders to prevent confusion in service delivery and emergency response situations.

7Similarly, Securitas noted that discipline documents are removed from employees’ files after 15 months, pursuant to the collective agreement with the Intervenor. Consequently, Securitas is no longer in possession of these documents.

8Securitas submitted that attendance records for Fire Prevention Inspectors have no arguable relevance to the issues before the Tribunal. Alternatively, Securitas submitted that this request is part of the applicant’s attempt to re-litigate an issue regarding her vacation entitlements that was settled to her satisfaction through the grievance procedure set out in the collective agreement with the Intervenor.

9Securitas submitted that the applicant failed to articulate the arguable relevance of her TMMC notebooks or those of Mr. Blewitt and that these requests should be denied for that reason.

10Securitas submitted that the request for leave of absence documents for other Fire Prevention Inspection Officers again reflects the applicant’s attempt to re-litigate vacation issues that were settled to her satisfaction through the grievance process and should be denied. In any event, Securitas submitted that the documents in question related to leaves of absence and therefore have no arguable relevance to the issue of the applicant’s vacation.

11Securitas submitted that, again, the applicant did not state the arguable relevance of any “Coach and Council” records that she may have received while employed by Securitas. In any event, Securitas noted that such disciplinary records are subject to the 15-month “sunset clause” in the collective agreement with the Intervenor; therefore, the documents no longer exist.

12Securitas states that its representative met in person with Toyota regarding the investigation of the applicant’s conduct and subsequent removal from Toyota’s premises. Accordingly, Securitas states that to the best of its knowledge there are no written records beyond those already disclosed to the applicant.

13Securitas denies that its letter to Human Resources and Skills Development Canada regarding the applicant’s Employment Insurance claim has any relevance to the issues before the Tribunal, but voluntarily disclosed the letter without prejudice to this position.

14Toyota submitted that it is unable to determine what the applicant means by “Toyota Team Member Safety write ups” and noted that the Applicant made no submission as to arguable relevance of such documents to the remaining allegations.

Analysis and Decision

15At 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. I do not agree, as Securitas submitted, that the fact that some of the issues raised by the applicant may ultimately be barred because another proceeding has appropriately dealt with their substance, pursuant to section 45.1 or as an abuse of process, is pertinent to the question of whether a document may be arguably relevant.

16Securitas submitted that the fire extinguisher post-orders sought by the applicant were destroyed, pursuant to Securitas’ regular practices. Similarly, Securitas submitted that all disciplinary records, including “Coach and Council” documents are removed from employees’ files after 15 months under the terms of the collective agreement with the Intervenor. Securitas also stated that it did not communicate in writing to Toyota regarding the applicant and has no further written records to disclose. In these circumstances, there is no basis on which to conclude that Securitas is in possession of the disciplinary documents the applicant requested or that it has any documents regarding its communications with Toyota about the applicant. Accordingly, there is no basis on which to order the respondents to produce them.

17The applicant did not explain how either the attendance records of other employees or the documents related to leave of absence requests of two of her co-workers are relevant to any matter in issue in this Application. The applicant also did not indicate the arguable relevance of her TMMC notebook. I am not prepared to order the disclosure these documents in the absence of submissions explaining why are arguably relevant.

18I agree that the applicant also did not explicitly indicate why Mr. Blewitt’s TMMC notebook is arguably relevant. She did, however, indicate that Mr. Blewitt is alleged to have spoken to her about fire extinguisher checks from October 2010 to January 2011 and relates the request for his notebook to those discussions.. The issue of fire extinguisher inspections and whether the applicant conducted them properly is in issue in this matter. Consequently, I find that Mr. Blewitt’s notebook is arguably relevant.

19Securitas has voluntarily disclosed its letter to HRSDC; therefore, no order is necessary.

20I agree with Toyota’s submission that Toyota Team Member Safety “write ups” is insufficiently precise to identify the documents the applicant seeks or even if the applicant actually knows that such documents actually exist. I am not prepared to order production in these circumstances.

Order

21The Tribunal orders as follows:

1. Within 14 days of the date of this Interim Decision, Securitas shall search its records and produce a copy of Darren Blewitt’s TMMC notebook(s) from October 2010 to the end of January 2011.

22Should Securitas 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.

Case Management

23Rules 16 and 17 of the Tribunal’s Rules of Procedure require the parties to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. To date, the Tribunal has no record of Securitas filing the required materials under Rules 16.2, 16.3, 17.1 and 17.2. Accordingly, Securitas is directed to immediately file the outstanding materials required under Rules 16 and 17, and if Securitas has not done so within 14 days of the date of this Interim Decision, the Tribunal may take any or all of the steps in Rule 5.

24The applicant has filed documents pursuant to Rules 16 and 17, but I find that the summary of her expected evidence, filed pursuant to Rule 17.2, is deficient. In the summary regarding her evidence the applicant indicates, among other things, that she will testify as set out in the initial Application regarding the discriminatory incidents that she was subjected to during her employment with Securitas. The scope of this matter has narrowed considerably since the filing of the Application, as the Tribunal has dismissed all allegations occurring prior to May 4, 2010. As noted in In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, witness statements must provide sufficient detail to allow the parties to understand and prepare for each other’s cases. The applicant, however, has not indicated what her testimony will be regarding the alleged incidents occurring on or after May 4, 2010 and I do not consider that the Application provides sufficient detail in that regard.

Direction

25Within 14 days of the date of this Interim Decision, the applicant is directed to deliver to the respondents and intervenor a revised witness statement that sets out in detail the particular evidence she expects to give regarding the remaining allegations in the Application, i.e., regarding incidents alleged to have occurred on or after May 4, 2010. If the applicant has not done so within 14 days of the date of this Case Assessment Direction, the Tribunal may take any or all of the steps in Rule 5.

Request for Summary Hearing

26I note that Securitas filed a Request for Summary Hearing on April 19, 2013. As the parties are aware, the Tribunal dismissed this Request by Registrar’s Letter of June 6, 2013. In my view, the most fair, just and expeditious procedure at this point in the proceedings is to have the applicant present her evidence, along with cross-examination, after which the respondents may make submissions regarding whether all or part of the Application should be dismissed for have no reasonable prospect of success, whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code or pursuant to the doctrine of abuse of process, or any other issue argument they wish to raise.