HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lindsay Redman
Applicant
-and-
Sunnybrook School Limited and Irene Davy
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Redman v. Sunnybrook School Limited
APPEARANCES
Lindsay Redman, Applicant
Carolyn Johnston, Counsel
Sunnybrook School Limited and Irene Davy, Respondents
D. Alan Whyte, Counsel
Introduction
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 disability, and reprisal.
2The Application is scheduled for a hearing on September 26 and 27, 2013.
3On July 23, 2013, the respondent filed a Request for Order During Proceeding ("RFOP") seeking the removal of the individual respondent and production of the following documents:
a. Clinical notes and records from the applicant's treating physicians from August 1, 2010 to the present;
b. The applicant's long term disability application;
c. Copies of all job applications and job advertisements to which the applicant applied following termination from the corporate respondent;
d. All résumés used by the applicant in her job search;
e. Calculation of and documents to support expenses claimed by the applicant as special damages;
f. The applicant's application(s) to OISE to commence studies in September 2012.
4The applicant responded to the respondent's RFOP on August 6, 2013. The applicant objects to the removal of the individual respondent. She objects further to the production of the clinical notes from her treating physicians from August 1, 2010 and submits that this request is overly broad. The applicant confirms that she has produced the clinical notes of Dr. Vaidya and has sought the clinical notes of Drs. Thornton and Bernstein. Upon receipt of an order from the Tribunal, the applicant consents to producing documents relating to her LTD claim. The applicant does not have copies of any job advertisements and completed one on-line job application, for which she does not have a copy. The applicant submits that her résumé is not arguably relevant and fears reprisal from the individual respondent regarding future career opportunities. The applicant agrees to submit documents relating to expenses claimed, but objects to producing her OISE application on the basis that it is not arguably relevant.
5On August 6, 2013, the applicant filed a RFOP seeking the following production from the respondent:
a. Her personnel file;
b. All documents relating to the applicant's claim for benefits from September 2011 to the present;
c. All documents relating to the hiring of the teacher who replaced the applicant for the 2012/2013 school year;
d. All correspondence between the respondents and individuals in the professional community between September 2011 and the present regarding the applicant;
e. All correspondence between the respondents and employees of the school between September 2011 and the present;
f. All documents relating to the applicant's complaint that she had been the victim of harassment during the 2010/2011 school year.
6On August 19, 2013, the respondents responded the applicant's RFOP. The respondents state all information in the applicant's personnel file has been disclosed except financial information and information relating to the Manoogian matter (the harassment complaint). The respondents state further that all information relating to the applicant's claim for benefits has been produced. The respondents agree to produce the hiring contract of the replacement teacher and advised there is no correspondence between the respondents and individuals in the professional community between September 2011 and the present. Minutes of staff meetings during the 2011/2012 school year were sent to the applicant's counsel on August 19, 2013. Finally, the respondents submit that documents relating to the applicant's harassment complaint during the 2010-2011 school year are not arguably relevant.
7Since filing their RFOPs, the parties have filed their pre-hearing documentary disclosure, producing many of the documents sought in the RFOPs. This Interim Decision addresses the issues that have not been resolved between the parties:
a. The removal of the individual respondent;
b. The outstanding production requests/issues:
i. The timeframe for the production of the clinical notes of the applicant's treating physicians;
ii. The applicant's résumé;
iii. The applicant's OISE application;
iv. The harassment complaint.
DECISION
Removal of Personal Respondent
8Rule 1.7(b) of the Tribunal's Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
9The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, and most recently in Madhani v. Sears Canada Inc., 2013 HRTO 290 at para. 50, where the Tribunal stated:
[w]hen considering the removal of a respondent, the following non-exhaustive list of factors to consider, some of which reflect the Persaud factors, appears reasonable to me:
Have allegations been made against this respondent that could support a finding that the respondent violated the Code?
Is there a juridical reason to remove this respondent from the proceeding?
Is there a procedural or remedial provision of the Code, such as section 46.3, that has relevance in respect of the allegations? More specifically, has a corporation, trade union, trade or occupational association, unincorporated association or employers' organization been named as a respondent along with the personal respondent? Is the personal respondent alleged to have breached subsection 2 (2), subsection 5 (2), or section 7? Is there any issue as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed? Is there is any issue as to the ability of the corporation, trade union, trade or occupational association, unincorporated association or employers' organization respondent to respond to or remedy the alleged Code infringement?
Would the removal of this respondent promote the fair, just and expeditious resolution of the merits of this Application?
Would any prejudice be caused to any party as a result of removing this respondent?
10The applicant alleges that the individual respondent demoted her to the position of supply teacher and that such demotion was a clear reprisal for asserting her rights under the Code. The applicant alleges further that the individual respondent spread negative comments about her throughout the workplace and the private school community.
11The applicant's claim of reprisal is a significant issue in the Application, as is the individual respondent's role in the alleged reprisal. It is unknown at this stage in the proceeding whether a finding of liability will be made on the reprisal allegation and a remedy awarded. Reprisal is similar to an allegation of harassment in that individual conduct and a potential remedy against the individual are important issues, despite the fact that a corporate respondent may assume liability for the individual's conduct. Where an individual's conduct is central to the allegations of discrimination such that an individual remedy could be awarded, there are compelling reasons to continue the proceeding against the individual respondent. That is the case here. The applicant has made allegations against the individual respondent which, if proven, would be outside the individual respondent's role as directing mind of the school. As such, the request to remove the individual respondent is denied.
Legal Test for Production
12It is well-established that a party seeking production of documents must demonstrate the information is "arguably relevant" to the proceeding. In order to establish "arguable relevance", a party must show there is a nexus between the sought-after material and the subject-matter of the Application.
13Documents meeting the "arguable relevance" threshold may not be ordered disclosed or may be subjected to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, 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.
14Finally, in assessing any disclosure request, the Tribunal must also consider whether fairness requires that production be subject to certain limitations, terms or conditions.
Date for Clinical Notes
15The respondent is seeking the clinical notes from the applicant's treating physicians from August 2010 to August 2011. The applicant has provided the clinical notes of her treating physicians from September 2011 to the present.
16In correspondence dated August 16, 2013 from the respondents' legal counsel to the applicant's legal counsel, respondents' counsel states the following regarding the production of clinic notes from August 1, 2010:
It is clear from the records that have been produced that Ms. Redman had ongoing medical issues of various types. At the hearing of this matter, the Respondents will be taking the position that the School is not in any way responsible for the medical conditions experienced by the Applicant, including the anxiety and depression which she apparently suffered. In order to get a full picture of the Applicant's medical condition, it is necessary that her medical records for the August 2010 to August 2011 timeframe be produced.
17The applicant alleges that in August 2011, she began to experience a severe reaction to fumes and chemicals at the school because of the extensive construction that was taking place at that time. The applicant asserts that on September 2, 2011, she was diagnosed with a severe respiratory infection aggravated by the construction in her work environment and was subsequently diagnosed with a stress-induced heart murmur resulting in her being medically unfit to work. The applicant had ongoing medical issues in the fall of the 2011 and the winter of 2012. The medical notes of the applicant's treating physicians from September 2011 to the present are arguably relevant to the issues in the Application and have been produced by the applicant.
18In reviewing the Response, it does not appear that the respondents are contesting the legitimacy of the applicant's health condition in the fall of 2011 and winter of 2012. In other words, it does not appear that the respondents are asserting the applicant did not have a disability at that time. Therefore, it is unclear to me why her health care records before September 2011 are arguably relevant. The Tribunal does not look at who caused a disability: it only examines whether there was a disability. That does not seem to be in dispute in this case.
19The applicant alleges further that as a result of the respondents' actions, she has experienced acute stress and anxiety requiring medical treatment.
20The respondents argue it is not responsible for the anxiety and depression experienced by the applicant. As such, it is requesting disclosure of the applicant's medical records before the events of September 2011. I agree that any pre-existing mental health issues that the applicant may have had are arguably relevant to the remedy sought by the applicant in the event a finding is made in her favour. For this reason, the applicant must disclose notes of her treating physicians that relate to her mental health from August 2010 to August 2011.
Résumé
21The applicant objects to producing the résumé that she used for her job search after termination on the basis that it is not arguably relevant and because she fears reprisal from the individual respondent. There are no reasons given for this fear.
22The applicant's résumé used in her job search post-termination is arguably relevant to her mitigation efforts and must be produced.
Harassment Complaint and OISE Application
23The applicant has requested production of her personnel file. The respondents have advised that her personnel file has been produced with the exception of financial information and the documentation relating to the harassment complaint.
24The respondents have listed many reasons for their decision to terminate the applicant's employment in May 2012, including the fact that she had been looking for employment elsewhere during the last two years of her employment and had requested numerous references letters to assist her in securing other employment and/or pursue further studies, including for her application to OISE in October 2011.
25The respondents have challenged the bona fides of the applicant's desire to work during her employment and to return to work when the construction was completed in the Spring of 2012. Because of this, the applicant's OISE application is arguably relevant. The applicant's harassment complaint is also arguably relevant to the reasons why she may or may not have wanted to return to the school in the Spring 2012, and why she may have been looking for other employment during the 2010/2011 school year. As such, the harassment complaint and the OISE application must be produced.
ORDERS
26The Tribunal makes the following orders:
a. The respondents' request to remove the individual respondent is denied;
b. The applicant must produce:
i. the résumés used in her job search after her termination by the corporate respondent;
ii. health care records from August 2010 to August 2011 that relate to her mental health; and
iii. the OISE application to commence studies in September 2012;
c. The respondents must produce the harassment complaint during the 2010/2011 school year (the Manoogian matter).
d. The parties are to exchange with each other and file these documents with the Tribunal within seven days of the date of this interim decision. If the parties have difficulty meeting this timeline, they can advise the Tribunal.
Dated at Toronto, this 9th day of September, 2013.
"Signed by"
Jennifer Scott
Vice-chair