HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ashley Cassat
Applicant
-and-
Sutherland Global Services Canada ULC
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Cassat v. Sutherland Global Services Canada ULC
WRITTEN SUBMISSIONS
Ashley Cassat, Applicant
Self-represented
Sutherland Global Services Canada ULC, Respondent
Leslie Frattolin, 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 disability.
2This Application is scheduled to proceed to a hearing in Windsor on November 7 and 8, 2013.
3The purpose of this Interim Decision is to address a Request for Order filed by the applicant on October 9, 2013, seeking production of certain documents from the respondent. Specifically, the applicant seeks production of the following documents:
a. The metrics of all employees on the respondent’s AT&T Uverse campaign for the months of June and July 2011, setting out all seven metrics included on the scorecard;
b. The statistics for a specific employee (N.G.) who was in the applicant’s training class and commenced employment on the same day as the applicant, for the months of June through December 2011; and
c. The details of the applicant’s coaching sessions in June, July and August 2011, and the details of what the coach wrote in each coaching session.
4In its Response to Request for Order, the respondent has agreed to produce the following documents:
a. The metrics of the applicant for May, June, July and August 2011, which will indicate the applicant’s ranking against the other employees who were in her training class;
b. The metrics for N.G. for the months of May, June, July and August 2011, which will indicate N.G.’s ranking against the other employees in the training class; and
c. The details of the applicant’s coaching sessions for the months of June, July and August 2011, if these records still exist.
5In my view, the respondent’s responses to the applicant’s second and third requests are sufficient to satisfy these requests for production. While the applicant requested N.G.’s metrics up to December 2011, it seems to me that the relevant period of time for the purpose of the hearing is her metrics during the period when the applicant was employed, which ended in August 2011.
6The only remaining issue between the parties relates to the applicant’s first request, regarding the metrics for all employees working on the respondent’s AT&T Uverse campaign for the months of June and July 2011. The respondent takes the position that this request is overly broad and not relevant, and amounts to a fishing expedition. I disagree.
7The respondent’s position is that it terminated the applicant’s employment specifically because she failed to meet certain performance metrics that were measured, and not because of any disability. The respondent takes the position that the decision to terminate the applicant’s employment was made during her probationary period and prior to any awareness of the applicant’s psychological disability. However, those are disputed issues that will need to be assessed in light of all of the evidence tendered and heard at the hearing.
8The applicant is entitled to challenge the respondent’s assertion that it made the decision to terminate her employment for non-discriminatory reasons, and is entitled to access arguably relevant evidence to support her position that the respondent’s stated reasons are not credible and are a pretext for discrimination. In my view, it is arguably relevant to the issues raised in this matter for the applicant to have access to the metrics of the other employees who worked on the same campaign, in order to assess whether any other employees fell below the metrics that she achieved and to be able to provide evidence or ask questions about whether the employment of any such employees also was terminated. And the applicant will not be able to do this on the basis solely of receiving her own metrics and rankings, without knowing specifically who else, if anyone, fell below the metrics and ranking levels that she achieved.
9As a result, I find that the production sought by the applicant is arguably relevant to the matters at issue in this proceeding, and so order disclosure of all material sought. Given the pending hearing dates in this matter, the respondent shall make disclosure of these documents to the applicant and file them with the Tribunal by no later than Friday, November 1, 2013.
ORDER
10By no later than November 1, 2013, the respondent shall disclose to the applicant and file with the Tribunal the following documents:
a. The metrics of the applicant for May, June, July and August 2011, which indicate the applicant’s ranking against the other employees who were in her training class;
b. The metrics of all employees on the respondent’s AT&T Uverse campaign for the months of June and July 2011, setting out all seven metrics included on the scorecard;
c. The metrics for N.G. for the months of May, June, July and August 2011, which indicate N.G.’s ranking against the other employees in the training class; and
d. The details of the applicant’s coaching sessions for the months of June, July and August 2011, if these records still exist.
Dated at Toronto, this 24th day of October, 2013.
“Signed by”
Mark Hart
Vice-chair