Sarah Brown v. Stikeman Elliott LLP, 2013 HRTO 1639

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Brown

Applicant

-and-

Stikeman Elliott LLP

Respondent

INTERIM DECISION

Adjudicator: Mark Hart
Date: September 30, 2013
Citation: 2013 HRTO 1639
Indexed as: Brown v. Stikeman Elliott LLP

WRITTEN SUBMISSIONS

Sarah Brown, Applicant
Kenneth Hughes, Counsel

Stikeman Elliott LLP, Respondent
Patricia Murray, Counsel

1This is an Application dated July 11, 2012 and 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 ancestry, place of origin, ethnic origin and disability.

2The hearing in this matter has been scheduled to proceed on November 27 to 29, 2013.

3On June 26, 2013, the respondent filed requests for orders seeking particulars and production of medical documents.

4By letter dated August 2, 2013, applicant’s counsel provided respondent counsel with copies of signed consents authorizing access to medical documents. This letter also responded to the respondent’s request for particulars to some degree.

5In light of this correspondence from applicant’s counsel, I issued a Case Assessment Direction (“CAD”) dated August 13, 2013 directing the respondent to advise the Tribunal whether it still intended to pursue any of the relief sought in the requests for order, and if so, to specify what relief continues to be sought and on what basis. The applicant was given a further 10 calendar days to provide any submissions in response.

6The respondent made further submissions by letter dated August 23, 2013, as discussed in more detail below. To date, no further submissions have been received from the applicant.

REQUEST FOR MEDICAL RECORDS

7With regard to its request for medical records, the applicant had provided signed consents authorizing the release directly to respondent counsel of the requested medical records held by the company that administered the respondent’s short-term disability (“STD”) plan and the insurer for the respondent’s long-term disability (“LTD”) plan. In her letter dated August 23, 2013, respondent counsel states that she had just received the LTD file, and so the respondent was not yet in a position to confirm whether there is any outstanding production issue. As a result, I will not address the respondent’s request for production of medical records at this time.

8I note that, in addition to the aforementioned consents, the applicant also signed a consent for disclosure of medical records from her family physician to her own counsel. The parties have a continuing obligation to disclose to each other any arguably relevant documents that come into their possession. Accordingly, following receipt of the medical records from the applicant’s family physician, the applicant is directed forthwith to disclose to the respondent all arguably relevant documents from the records produced by her family physician. Similarly, the respondent is under an obligation forthwith to disclose to the applicant all arguably relevant documents produced by the STD administrator and the LTD insurer, and is directed to do so.

REQUEST FOR PARTICULARS

9At para. 16 of the Application, the applicant alleges that five specific comments were made by an identified co-worker. However, the Application does not provide the date, time or place where the alleged comments were made, or identify who was present when the comments were made. In response to the respondent’s request for these particulars, the applicant has indicated that a second identified co-worker was present when four of the five comments were made. However, the applicant has not provided any particulars regarding the date, time or place where the alleged comments were made, or any kind of surrounding context that may assist the respondent and its employee to respond to these allegations.

10In addition, in the applicant’s response to the respondent’s request for particulars, she now alleges that this same co-worker made yet another discriminatory comment, but once again has failed to identify the date, time or place where the alleged comments was made, who was present, or any surrounding context.

11In para. 16 of the Application, the applicant states that “at various times, [she] was the brunt of inappropriate comments and actions from various other employees”, and then she goes on to identify one co-worker in particular and set out five specific alleged comments (addressed above). In its request for particulars, the respondent requested confirmation that there are no other alleged discriminatory comments beyond those specifically listed. In response, the applicant stated that she is unable to confirm at this time that there are no other discriminatory comments, and goes on to raise the new allegation against the one specific co-worker (addressed above) and then makes reference to two further allegations of discriminatory comments, for which she does not identify who is alleged to have made these comments, or when, where or in what context these comments are alleged to have been made (I note that these alleged comments were raised by the applicant in her Reply, at para. 31).

12The Application states that the applicant advised the respondent’s Director of Administrative Services of the alleged harassment but that the issue was not adequately addressed. The respondent has requested the following particulars:

a. Please particularize the exact alleged discriminatory or racist comments made by the applicant’s co-worker which the applicant claims were communicated to the Director;

b. Please provide the time and date that the applicant told the Director of these discriminatory and racist comments;

c. Please advise who was present when the applicant advised the Director of these discriminatory and racist comments.

13While the applicant purported to respond to these requests, the information provided is unresponsive to the specific questions asked. This is an important point. Either the specific alleged comments (as set out at para. 16 of the Application and now the three further alleged comments) were reported to the Director or they were not. The applicant needs to be able to respond one way or the other. If she says that they were reported, then she needs to be able to say when she did so and whether anyone else was present (or whether she reported to her supervising lawyer not just that she met with the Director and raised some broad claim of “harassment”, but that she had specifically reported the alleged discriminatory comments). It is not enough simply to point to the draft e-mail response to the co-worker that the applicant prepared sometime in August 2011, as that document does not contain any reference to the alleged discriminatory comments.

14These particulars, to the extent that they are known to the applicant, need to be provided to the respondent forthwith. It is now two months before the hearing, and the respondent’s request for these particulars has been outstanding since May 30, 2013. The time to recall the details requested by the respondent is now, and not when the applicant takes the witness stand at the hearing. These are central allegations raised in the Application. The nature of the alleged comments provides the only articulated basis for any connection between the allegations of “harassment” and “poisoned work environment” and the cited grounds of ancestry, place of origin and ethnic origin, and it is the alleged reporting of these specific comments that can provide a basis for the allegation that the respondent failed to take adequate steps to respond to an alleged violation of the Code.

15The respondent has asserted that the allegations at issue are so lacking in factual specificity that it is impossible for the respondent to respond, and requests an order precluding the applicant from providing any evidence regarding the alleged racially derogatory comments.

16I am not prepared to go that far, at least not yet. However, I am prepared to require the applicant to provide the particulars requested within a specific time, failing which I will not allow her to give evidence about the alleged comments at the hearing beyond what is stated in the Application and any further particulars she may provide. Further, I certainly will take any lack of particularity into account when I am assessing the credibility of the parties and witnesses and in determining what, if any, weight I will accord to this evidence.

ORDER

17For the foregoing reasons, the applicant is ordered to disclose to the respondent the following information within 14 calendar days:

a. With regard to the five specific comments set out in para. 16 of the Application and alleged to have been made by the identified co-worker and the sixth specific comment alleged to have been made by this same co-worker as now raised in correspondence from applicant counsel dated August 2, 2013, the applicant shall provide her best recollection as to the approximate date and time (if she does not know the specific date and time, her best recollection as to the month or season, the year, and the approximate time of day) and location where each of these comments is alleged to have been made together with any further information regarding the surrounding context in which these comments are alleged to have been made;

b. With regard to the two alleged discriminatory comments as set out in correspondence from applicant counsel dated August 2, 2013 and at para. 31 of the applicant’s Reply, the applicant shall identify who is alleged to have made these comments and provide her best recollection as to the approximate date and time (if she does not know the specific date and time, her best recollection as to the month or season, the year, and the approximate time of day) and location where each of these comments is alleged to have been made together with any further information regarding the surrounding context in which these comments are alleged to have been made;

c. If there are any further alleged comments upon which the applicant intends to rely at the hearing regarding her allegations of harassment and a poisoned work environment because of ancestry, place of origin and ethnic origin, the applicant shall identify all other such alleged comments, and provide the same particulars as set out in para. (b) above, failing which the applicant shall not be permitted to raise any further alleged comments beyond those already disclosed; and

d. With regard to the allegation that the applicant reported the harassment to the Director of Administrative Services,

i. the exact alleged discriminatory or racist comments made by the applicant’s co-worker which the applicant claims were communicated to the Director;

ii. the time and date that the applicant told the Director of these discriminatory and racist comments;

iii. who was present when the applicant advised the Director of these discriminatory and racist comments;

iv. whether the applicant advised her supervising lawyer that she had specifically reported the alleged discriminatory comments, and if so, when.

18Further, following receipt of the medical records from the applicant’s family physician, the applicant shall forthwith disclose to the respondent all arguably relevant documents from these records. Similarly, the respondent shall forthwith disclose to the applicant all arguably relevant documents produced by the STD administrator and the LTD insurer.