Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, 2013 HRTO 1812

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcia Budd

Applicant

-and-

783720 Ontario Inc. o/a Birchmere Retirement Residence

and Jacqueline Payne

Respondents

INTERIM DECISION

Adjudicator: Ruth Carey

Date: October 28, 2013

Citation: 2013 HRTO 1812

Indexed as: Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence

WRITTEN SUBMISSIONS

Marcia Budd, Applicant

Doug MacLeod, Counsel

783720 Ontario Inc. o/a Birchmere Retirement Residence and Jacqueline Payne, Respondents

Steven Wilson, 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.

2The Application alleges that on November 28, 2011, the applicant provided the respondents with two notes from a doctor that essentially say the applicant would be absent from work until December 20, 2011. On November 30, 2011, the respondents wrote to the applicant saying she was deemed to have quit her employment and it subsequently issued her a record of employment saying the same thing.

3The Response alleges the applicant was either not disabled at the time, or alternatively, that she failed to provide the respondents with information concerning her limitations so that it could accommodate her needs. The Response says the reason the applicant did not show up for work was because she wanted to go on vacation; she had asked for and been denied vacation for the same time period as the medical leave but had already purchased her tickets; and she had already cleaned out her office in preparation for quitting.

4This Interim Decision is being issued in response to the respondents’ August 15, 2013 Request for an Order During Proceedings (“RFOP”) seeking an order to amend the Response and for certain productions.

5By way of Case Assessment Direction (“CAD”) issued on September 6, 2013, the Tribunal directed the applicant to respond to the RFOP within 7 days of the CAD; and the respondents to reply to that response within 5 days of receiving it. On September 12, 2013, the applicant filed and delivered a letter in response to the CAD. On September 16, 2013, the respondents filed and delivered their reply to the applicant’s letter. Then on September 27, 2013, the applicant filed a Response to the RFOP along with attached submissions and documents in support.

6For the reasons that follow the respondents’ RFOP is granted in part: the respondents’ Response is ordered amended as requested. All other aspects of the RFOP are denied.

The Request to Amend the Response

7The RFOP asks for an order amending its Response to include additional particulars in the form of a new sub-paragraph, 57xii. The proposed amendment describes how the respondents found items in the applicant’s office that they believe might belong to her, and how they returned those items to the applicant on December 19, 2011.

8The applicant’s Response to the RFOP does not object to the respondents’ request to amend the Response. The content of the proposed amendment is limited to background information about the sequence of events. It does not raise new defences or make assertions that would support a new defence. The applicant did not file a Reply to the original Response. As a result, granting the requested amendment will cause no prejudice to the applicant so the request to amend is granted.

The Request for Productions

9The RFOP seeks an order for production of: a notarized copy of the applicant’s passport; travel documents for the applicant relating to the period November 28, 2011, to December 19, 2011; and the telephone records of the applicant and her spouse for November, 2011, and up to December 19, 2011.

The Passport and Travel Documents Requests

10The RFOP says the respondents intend to lead evidence to establish that after the applicant’s vacation request was denied she said she was going to go anyway as she already had tickets to travel to the United States to help her daughter prepare for her wedding. Although the RFOP does not explicitly state this, presumably the respondents seek production of the applicant’s passport and travel documents to establish she left the country as planned.

11The Response to the RFOP filed by the applicant makes a number of admissions with respect to the applicant’s travel during the period November 28 to December 20, 2011. It says on November 10, 2011, the applicant’s spouse purchased a flight with AirTran Airways for him and the applicant to fly from Buffalo, New York to Atlanta, Georgia on December 4, 2011 returning on December 13, 2011. It also confirms that the applicant did in fact go on this trip. Ticket confirmation from AirTran Airways has been provided to the respondents. It is dated November 10, 2011, and identifies the applicant as a passenger.

12The respondents’ reply submissions assert that the passport is arguably relevant and should be produced; and in addition, the respondents now seek:

all statements of debits by cheque or debit card or otherwise from the financial accounts of Ms Budd and Mr. Budd to AirTran Airways, or to other carrier, or to travel agency, related to a cancelled air flight to Atlanta Georgia or other destination in the United States.

13The respondents do not offer any additional rationale for seeking these records or the applicant’s passport. Given the applicant’s admissions summarised above and her production of proof of purchase of her plane tickets, it is unclear to me why additional production is necessary as there does not seem to be any issue in dispute between the parties concerning the applicant’s travel plans or activities. She has essentially admitted those parts of the respondents’ Response. As stated by the Tribunal in Le Blanc v. Toronto Transit Commission, 2011 HRTO 1625, at para. 6:

At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. [Emphasis added.]

14Absent some factual dispute between the parties about the applicant’s travel plans and activities during the relevant period, the additional productions requested by the respondents are unnecessary. If there actually is a factual dispute between the parties that is not explained in the RFOP or submissions then the respondents may file another Request seeking production explaining what the issue in dispute is. For the time being however, the respondents’ request for production with respect to any non-disclosed documents related to the applicant’s travel is denied.

Telephone Records

15The respondents’ RFOP seeks an order for production of all telephone records of the applicant and her spouse for the period November, 2011, up to December 19, 2011. The RFOP does not actually say why the respondents seek these records.

16From subparagraph 33ii (by which I mean the second subparagraph 33ii as there are two) of the Response to the Application, it would appear that what the respondents seek is evidence concerning any telephone contact the applicant had with her physician related to the doctor’s notes dated November 21 and 28, 2011. The Response also says the respondents telephoned the applicant and left messages on November 28 and 29, 2011, but received no reply until November 30, 2011, when the applicant’s spouse called. When the respondents asked to speak to the applicant directly, the applicant’s spouse allegedly refused to let them speak to her saying he had removed the phones from her room and further refused to take a cell phone into the room where she was resting.

17In its submissions filed on September 16, 2013, the respondents expand the scope of the records they seek to include:

all telephone records of Ms Budd and Mr. Budd from September 2011, when the vacation request was first turned down to December 19, 2011.

18Their submissions also state at paras 21 and 26:

The Respondents submit that the record of telephone calls, when they occurred and to whom during the period, when coordinated with the events described in the Application and Reply [Note: no Reply was filed with the Tribunal], along with the passport record and financial transactions related to flight dates are relevant.

The release in September 11, 2013 of the travel document makes relevant telephone records reaching back to September 2011 when the vacation request was first denied.

The Respondents sought medical information and received doctor’s records for meetings… but received no documentation with respect to the November 28, 2011 meeting. Again who spoke to whom and when is relevant.

19Again it is not entirely clear to the Tribunal what issue is in dispute between the parties that the telephone records of the applicant and her spouse would speak to. A mere assertion of relevance is not sufficient. The Tribunal has explained this issue in McKay v. Toronto Police Services Board, 2009 HRTO 1220, at paras. 12-13 as follows:

The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLII 46508 (ON HRT).

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. [Emphasis added.]

20In order to establish the telephone records are arguably relevant, the respondents need to state for the Tribunal and the applicant what factual or legal issue is in dispute that the telephone records might speak to. For example, it may be that the respondents question the genuineness of the doctor’s note of November 28, 2011, given that production of the applicant’s medical records seems to show there was no visit with the doctor that day. It may also be that there is some dispute between the parties as to when the applicant started planning her trip to Atlanta, Georgia. However, these possibilities are mere speculation on the part of the Tribunal and that is not sufficient to justify an order for production. It is for the party seeking production to indicate in some way what issue is in dispute that the records sought might address. As above, the respondents may file another Request seeking production that provides that information.

ORDER

21The respondents’ Response is amended by the addition of new paragraph 57xii, as set out in respondents’ RFOP filed August 15, 2013, which consists of four subparagraphs starting with the words “When Mr. Budd showed up” and concluding with “the fan, the cord, the dictionary and the glasses – belonged to Ms Budd.”

22All other aspects of the respondents’ RFOP are denied.