Christine Robus v. Independent Living Services, 2013 HRTO 1171

Christine Robus

Applicant

-and-

Independent Living Services

Respondent

Adjudicator: Daniel Randazzo

Date: July 4, 2013

Citation: 2013 HRTO 1171

Indexed as: Robus v. Independent Living Services

Christine Robus, Applicant ) Doug MacLeod, Counsel

Independent Living Services, ) Joseph N. Tascona, Counsel

Respondent )

1This Interim Decision addresses a production request filed by the applicant.

2The applicant alleges discrimination in employment on the basis of disability. The applicant alleges that she is an alcoholic and that her supervisor and the respondent were aware of her disability. The applicant alleges that she was suspended because her supervisor suspected that she was drinking during working hours. In addition, the applicant alleges that she was terminated contrary to the Human Rights Code, R.S.O. 1990 c. H.19 because the respondents took into account her disability in deciding to terminate her employment.

PRODUCTION OF DOCUMENTS

3At the outset it is important to note that the parties, in accordance with the Tribunal’s Rules of Procedure produced arguably relevant documents and those documents which the parties intended to rely upon. The respondents, by letter dated January 22, 2013, identified and produced a significant number of arguably relevant documents. This is not a case in which the respondents refused to produce documents or purposely failed to produce arguably relevant documents.

4This matter was scheduled for hearing on June 24, 25 and 26, 2013. At the commencement of the hearing the respondent advised that it intended to seek leave of the Tribunal to allow it to rely upon three documents, identified as the April 6, May 27, and August 19 Personal Action Plans, in the defence of the claim. The respondents noted that the three documents had been identified and produced in January 22, 2013 and that the applicant was already in possession of the documents. The respondents also noted that similar documents relating to different dates had been identified by both the respondent and the applicant as documents upon which they intended to rely. The respondents also claimed that there would be no prejudice to the applicant should the Tribunal grant leave and allow the respondent to rely on the documents.

The applicant objected to the respondents request stating that the request was untimely and that if granted the applicant would need an adjournment to review the documents with his client.

5After some discussion with the parties, and in light of the applicant’s production request, it was agreed that the respondent would be permitted to rely on the three documents, identified as April 6, May 27 and August 19 Personal Action Plan. In light of the need to resolve the applicant’s extensive production request, it was unnecessary to determine whether an adjournment was appropriate to allow for the review of these three documents.

6Also at the commencement of the June 24th hearing date, the applicant made a Request for Order During Proceedings (“Request”) seeking an order directing the respondent to produce various documents.

7The applicant’s Request contained the following demand for documents:

A copy of LHIN’s Service Accountability Agreement (par 4 of Schedule “A” of the Response) including its specific performance targets for service levels and tracking client satisfaction.
Any documents in connection with the On-Call Supervisor position in Attendant Care Program including description, or any policy in connection with this service (par 9).
Any documents to support the allegations in par. 10

Any documents to support the allegations contained in par. 11 – particularly the allegation the Applicant was “generally expected to work out of the ILS office” and “Working from home was only to occur on an exceptional basis.”

Any documents to support the allegation in par 12 that the Applicant began to have serious performance issues and problems fulfilling her responsibilities.
Any documents supporting the allegation in par 13 including attendance records, and the Applicant’s cell phone records from February 2010 to the date of her termination.
Any documents supporting the allegation in par. 14 including a copy of the ILS policies and procedures, and a copy of the Respondent’s training materials.
Any documents supporting the allegation in par. 15 including any documents where any of the respondents directed the Applicant to create the procedural manual including “reminders and offers of assistance.”
Any documents that exist in connection with the March 5, 2010 meeting referenced in pars. 16 to 20 including internal emails, any hand written notes taken by Ms. Reynolds, and a copy of the Performance Action Plan.
Any documents that exist in connection with the meetings referenced in par 21. I understand that the Respondents claim that there were 12 such meetings so any documents prepared prior to, at or after these meetings (including hand written notes) must be disclosed together with any revisions that were made to the Performance Action Plan including indications that items had been satisfactorily completed. Please disclose any documents which support the allegation that ILS provided assistance to the Applicant during this time. Also any documents that support the allegation “the Applicant’s performance continued to be a problem.”
Any documents that exist in connection with the allegations referenced in par. 22 including any clients who the Respondents claim left ILS and whose hours were not reallocated by the Applicant quickly enough. Please produce any documents which support the allegation that “the Applicant’s failure to perform her duties put the ILS’s funding in jeopardy.” Finally, please provide documents for: all clients who left ILS between February 2010 and January 2011; the time it took to reallocate the hours; and, the name of the Program Supervisor for allocating the hours.
Any documents in support of the allegation in par.23 that the Respondents received complaints from partner agencies and/or clients in connection with the Respondent and all other Program Supervisors including the examples involving CCAC & a client that are referenced in par. 23
Any documents in support of the allegation in par 24 including any applicable policy, and any service agreements that were not renewed by the Applicant and all other Program Supervisors between February 2010 and January 10, 2011.
Any documents in support of the allegation in par 25 including: the September 30, 2010 email; the required agency practice; a list of all lieu days that were taken by any Program Supervisor between February 2010 and January 10, 2011; and, written documentation showing that the required agency practice was followed in all cases.
Any documents in support of the allegation in par 26 including any written direction or any written confirmation that a verbal direction was provided the Applicant.
Any documents in support of the allegations in par 27, 28, 29, 30, 31 including any emails, hand written notes, notes to file etc. taken by Ms Reynolds.
Any documents in support of the allegations in par 32 including any notes taken by any employees including the “several employees” notes on this paragraph and any notes taken by Ms. Reynolds.
Any documents in support of allegations in par 33 including notes in connection with the 2001 incident and the 2005 incident.
Any documents in support of the allegations in par 35, 36 including any documents prepared by Ms. Reynolds or Mr. Young prior to, at, and after the October 7, 2012 [sic 2010] and October 12, 2010 meetings including emails between them, notes to file and y handwritten notes. Please provide a copy of he consent forms for the Monitored Referral Program; any documentation that was exchanged between the EAP provider, Aspira Corp. and the Respondents in connection with the Applicant. Please provide copies of all notes that were taken by Ms. Reynolds in connection with all subsequent meetings with the Applicant.
Any documents in support of the allegations in par 37 including any documents prepared by Ms. Reynolds or the “several staff members.”
Any documents in support of the allegations in par 38 including any documents which support the allegation the Applicant was provided with “ongoing coaching and feedback”
Any documents in support of the allegations in pars 40 and 41 including December 20th and 21st emails.
Any documents in support of the allegations in par 42 including the December 23rd email and documents in support of the allegation that the Applicant was asked for a doctor’s note.
A copy of the doctor’s note the Applicant provided the Respondent’s on December 24, 2010.

Any documents in support of the allegations in par 45 including a copy of the referenced emails and documents in connection with the referenced meeting. Any documents to support the allegations that the Applicant “put the ILS’ clients at risk.”

A copy of all notes, emails, reports or any documentation in connection with the investigation reference in par 46 including internal emails, all notes taken at interviews with the Applicant and all other employees, a copy of the Applicant’s written statement, and a copy of any draft and/or final investigation report.
A copy of any documentation in connection with any prior discipline imposed on the Applicant particularly in connection with the allegation that the Applicant “had been warned about her performance issues for nearly one year.”
Documents that the Respondent has failed to produce in connection with lost wages/benefits.

8The applicant also requested a copy of applicant’s personnel file.

9It 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 (“McKay”).

10The “arguable relevance” threshold has been described as “not a particularly high bar”. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, at para. 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.

11The applicant argued that the 26 requests were arguably relevant. The applicant argued that the respondent had put the applicant’s performance into question and that the documents requested relate directly to the pleadings and the allegations concerning the applicant’s performance. The applicant also relied upon its written reasons as contained in its Request in support of its Request.

12The respondent did not, to a great extent, challenge the applicant’s position that the many of the documents were arguably relevant. The respondent’s primary objection focused on the timeliness of the request. The respondent argued that many of the documents had already been provided to the applicant in the respondent’s disclosure letter of January 22, 2013.

13Although I am mindful of the timing of the request and the cost to the parties and the Tribunal of potential lost dates, upon the hearing of the submissions of the parties, it is evident that some of the documents requested are arguably relevant and should have been produced.

14Upon considering the submissions of the parties, including the applicant’s Form “A” attached to its Request, the Application as well as the Response, I make the following findings and orders. It should be noted, as will be seen below, that many of the documents appear to have been previously produced by the respondent.

A copy of LHIN’s Service Accountability Agreement (par 4 of Schedule “A” of the Response) including its specific performance targets for service levels and tracking client satisfaction.

I find that this document is arguably relevant. The respondent has agreed to produce the LHIN’s Service Accountability Agreement.

Any documents in connection with the On-Call Supervisor position in Attendant Care Program including description, or any policy in connection with this service (par 9).

I find that the On-Call Supervisor Logs are arguably relevant. The respondent has agreed that if the Logs exist they will be produced.

Any documents to support the allegations in par. 10

I find that documents, including emails, which show or indicate that Program Supervisors regularly worked at home or on the road to be arguably relevant to the allegations concerning the applicant’s performance. I direct the respondent to produce all documents, including emails, prepared by Program Supervisors which show or indicate that they regularly work at home or outside the office for the period of March 5, 2010 to January 10, 2011. As these documents may contain private and confidential information as it relates to the respondent’s clients, I direct the respondent to redact any information that may reveal the identity of its client’s.

Any documents to support the allegation in par 12 that the Applicant began to have serious performance issues and problems fulfilling her responsibilities.

I find that the applicant’s performance reviews are arguably relevant to allegations concerning the applicant’s performance. The respondent has agreed to produce the last three performance reviews.

Any documents supporting the allegation in par 13 including attendance records, and the Applicant’s cell phone records from February 2010 to the date of her termination.

I find that the applicant’s attendance records and cell phone records are arguably relevant to the allegations raised in the respondent’s Response. The respondent has indicated that these documents have been previously produced in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents supporting the allegation in par. 14 including a copy of the ILS policies and procedures, and a copy of the Respondent’s training materials.

I find that the documents relating to the checklists relating to each employee that was hired in the applicant’s program from March 2010 to December 2010, as well as the checklist of the Part-time scheduler. The respondent has agreed to produce these documents.

Any documents supporting the allegation in par. 15 including any documents where any of the respondents directed the Applicant to create the procedural manual including “reminders and offers of assistance.”

I find that the documents relating to the creation of the procedural manual to be arguably relevant to the allegations raised in the respondent’s Response. The respondent has indicated that they have previously produced all arguably relevant documents with respect to this request in their disclosure letter of January 22, 2013. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents that exist in connection with the March 5, 2010 meeting referenced in pars. 16 to 20 including internal emails, any hand written notes taken by Ms. Reynolds, and a copy of the Performance Action Plan.

I find that internal emails and any hand written notes taken by Ms. Reynolds to be arguably relevant to the allegations concerning the applicant’s performance. The respondent has advised that there are no such documents. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents that exist in connection with the meetings referenced in par 21. I understand that the Respondents claim that there were 12 such meetings so any documents prepared prior to, at or after these meetings (including hand written notes) must be disclosed together with any revisions that were made to the Performance Action Plan including indications that items had been satisfactorily completed. Please disclose any documents which support the allegation that ILS provided assistance to the Applicant during this time. Also any documents that support the allegation “the Applicant’s performance continued to be a problem.”

I find that any documents prepared prior to, at or after the Performance Action Plan meetings and that relate to those meetings are arguably relevant to the allegations concerning the applicant’s performance. The respondent had advised that any such documents were previously produced in its disclosure letter of January 22, 2013. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents that exist in connection with the allegations referenced in par. 22 including any clients who the Respondents claim left ILS and whose hours were not reallocated by the Applicant quickly enough. Please produce any documents which support the allegation that “the Applicant’s failure to perform her duties put the ILS’s funding in jeopardy.” Finally, please provide documents for: all clients who left ILS between February 2010 and January 2011; the time it took to reallocate the hours; and, the name of the Program Supervisor for allocating the hours.

I find that the reports relating to the non-allocation of hours and the manner in which the non-allocation of hours was dealt with by the respondent’s is arguably relevant to allegations concerning the applicant’s performance. The respondent indicated that they had provided the quarterly reports for the year 2010. Whether this issue, the non-allocation of hours, arose in the past and the manner in which it was dealt with is arguably relevant to the allegations raised in the respondent’s Response. I direct the respondent to produce the quarterly reports for the years 2008 and 2009.

Any documents in support of the allegation in par.23 that the Respondents received complaints from partner agencies and/or clients in connection with the Respondent and all other Program Supervisors including the examples involving CCAC & a client that are referenced in par. 23

Upon hearing the submissions of the applicant and upon reviewing the Applicant’s Schedule “A” to its Request, I find that the applicant was seeking confirmation that there were no other allegations of performance, other than what was contained in the respondent’s Book of Documents, that the respondent intended to rely upon. I find that this was not a proper request for documents and make no order with respect to this request.

Any documents in support of the allegation in par 24 including any applicable policy, and any service agreements that were not renewed by the Applicant and all other Program Supervisors between February 2010 and January 10, 2011.

I find that documents relating to the non-renewal of service agreements by the applicant and other Program Supervisors to arguably relevant to the allegations relating to the applicant’s performance. The respondent advised that that any documents coming within this request were previously provided in its disclosure letter of January 22, 2013. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents in support of the allegation in par 25 including: the September 30, 2010 email; the required agency practice; a list of all lieu days that were taken by any Program Supervisor between February 2010 and January 10, 2011; and, written documentation showing that the required agency practice was followed in all cases.

I find that the Absentee Request Form and whether other Program Supervisors were required to compete such a form as arguably relevant to the issue of the applicant’s performance. I direct the respondent to produce all completed Absentee Request Forms completed by the Program Supervisors for the period of March 1, 2010 to December 31, 2010.

Any documents in support of the allegation in par 26 including any written direction or any written confirmation that a verbal direction was provided the Applicant.

The applicant seeks production of written confirmation that a verbal direction was given to the applicant and the name of the individual who added the handwritten notes to the email found at Tab 24 of the respondent’s Book of Documents. The respondent advised that that any documents relating to the verbal direction were previously provided in its disclosure letter of January 22, 2013. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents. With respect to the applicant’s request for the disclosure of the name of the individual who added the handwritten notes to the email at Tab 24, I find that this is not a proper request for documents and make no order with respect to this request.

Any documents in support of the allegations in par 27, 28, 29, 30, 31 including any emails, hand written notes, notes to file etc. taken by Ms. Reynolds.

I find that any emails, hand written notes, notes to file taken by Ms. Reynolds to be arguably relevant to the allegations contained in paragraphs 27, 28, 29, 30 and 31 of the respondents Response. The respondent advised that all such documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents in support of the allegations in par 32 including any notes taken by any employees including the “several employees” notes on paragraph and any notes taken by Ms. Reynolds.

The applicant seeks any notes taken by any employees concerning the allegations in paragraph 32 of the respondent’s Response. The applicant also seeks the name of the “several employees” referenced in paragraph 32. I find that the notes taken by employees to be arguably relevant. The respondent advised that all such notes were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents. The request for the names of the “several employees” is not proper request for documents and I make no order with respect to this request.

Any documents in support of allegations in par 33 including notes in connection with the 2001 incident and the 2005 incident.

I find that documents, including notes, in connection to the 2001 and 2005 incidents are arguably relevant. The respondent advised that all such notes were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents. The applicant also sought production of notes relating to an anonymous letter allegedly provided by the applicant. The applicant has failed to produce the anonymous letter and in fact has failed to provide any particulars with respect to this issue. I therefore make no order with respect to the production of documents with respect to this request.

Any documents in support of the allegations in par 35, 36 including any documents prepared by Ms. Reynolds or Mr. Young prior to, at, and after the October 7, 2012 [sic 2010] and October 12, 2010 meetings including emails between them, notes to file and any handwritten notes. Please provide a copy of the consent forms for the Monitored Referral Program; any documentation that was exchanged between the EAP provider, Aspira Corp. and the Respondents in connection with the Applicant. Please provide copies of all notes that were taken by Ms. Reynolds in connection with all subsequent meetings with the Applicant.

I find that documents prepared by Ms. Reynolds or Mr. Young prior to, at, and after the October 7 and 12, 2010 meetings to be arguably relevant. The respondent advised that all such notes and documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents in support of the allegations in par 37 including any documents prepared by Ms. Reynolds or the “several staff members.”

I find that documents prepared by Ms. Reynolds or other staff members as they relate to the allegations in paragraph 37 of the respondent’s Response to be arguably relevant. The respondent advised that all such documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents in support of the allegations in par 38 including any documents which support the allegation the Applicant was provided with “ongoing coaching and feedback”

I find that documents which relate to the allegation that the applicant was provided with “ongoing coaching and feedback” to be arguably relevant. The respondent advised that all such documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents in support of the allegations in pars 40 and 41 including December 20th and 21st emails.

I find that documents relating to the December 20th and 21st emails to be arguably relevant. The respondent advised that all such documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Any documents in support of the allegations in par 42 including the December 23rd email and documents in support of the allegation that the Applicant was asked for a doctor’s note.

I find that documents relating to the December 23rd email and the allegation that the Applicant was asked for a doctor`s note to be arguably relevant. The respondent advised that all such documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

A copy of the doctor’s note the Applicant provided the Respondent’s on December 24, 2010.

The applicant advised that they wanted confirmation that “no document exists” that supports the allegations that the applicant “put the ILS’ clients at risk”. I find that although it is proper for a party to request the production of an arguably relevant document, it is not a proper request for documents to ask a party to confirm that a document does not exist. I make no order with respect to this request.

A copy of all notes, emails, reports or any documentation in connection with the investigation reference in par 46 including internal emails, all notes taken at interviews with the Applicant and all other employees, a copy of the Applicant’s written statement, and a copy of any draft and/or final investigation report.

I find notes, emails and reports in connection with the investigation referenced at paragraph 46 of the respondent’s response to be arguably relevant. The respondent advised that all such documents were previously provided in its January 22, 2013 disclosure letter. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

A copy of any documentation in connection with any prior discipline imposed on the Applicant particularly in connection with the allegation that the Applicant “had been warned about her performance issues for nearly one year.”

I find that documents in connection with any prior discipline to be arguably relevant. The respondent advised that other than the documents found at Tabs 15-31 of the Respondent’s Book of Documents, no other documents exist. I accept the respondent’s submission in this respect and accordingly there is no basis to order production of these requested documents.

Documents that the Respondent has failed to produce in connection with lost wages/benefits.

I find that documents that relate to the applicant’s RRSP contributions, benefit package and semi-annual payment to be arguably relevant. The respondent, while advising that the applicant did not have banked overtime hours as of January 10, 2011, agreed to produce documents relating to the applicant’s RRSP contribution, benefit package and semi-annual payments for the years 2007-2010.

15The respondent has agreed to provide the applicant with a copy of the applicant’s personnel file.

ORDER

16In light of the above, the Tribunal orders the respondent to produce to the applicant, within 35 days of this Interim Decision, to the extent that the documents have not been previously produced, a copy of the documents referenced in paragraph [14] (1), (2), (3), (4), (6), (10), (13) and (26) above. The Tribunal also orders the respondent to produce to the applicant within 35 days of this Interim Decision a copy of the applicant`s personnel file.

17The parties are advised that the Registrar will contact the parties to schedule three (3) days for the hearing of this matter. Finally, the Tribunal reminds the parties of their obligation to become prepared to commence the hearing of this matter on the dates that it is rescheduled.

Dated at Toronto, this 4th day of July, 2013.

“signed by”

Daniel Randazzo

Member