Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, 2013 HRTO 1984

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: November 29, 2013 Citation: 2013 HRTO 1984 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 F. 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.

2In Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, 2013 HRTO 1812, the Tribunal summarised the allegations in this Application at paras. 2-3 as follows:

The 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.

The 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.

3This Interim Decision is being issued in response to a Request for Order During Proceedings (“RFOP”) filed by the respondents with the Tribunal on November 18, 2013. On November 21, 2013, the applicant filed her Response to a Request for an Order (“the applicant’s response”).

4To summarise, the RFOP requests orders permitting the respondents to amend their Response to the Application; for further production; and permitting an addition to their list of arguably relevant documents. The applicant’s response is silent with respect to the addition to the respondents’ list of arguably relevant documents. It says the applicant takes no issue with some of the amendments requested but some are unnecessary; and it objects to the production orders requested.

5For the reasons stated below the request to amend the respondents’ Response to the Applicant is granted in part; the orders requested with respect to further production are denied; and no order is issued with respect to the addition to the respondents’ list of arguably relevant documents.

THE REQUEST TO AMEND THE RESPONSE

6The RFOP seeks to amend two different sections of the respondents’ Response to the Application.

7The first section the respondents seek to amend is contained within subparagraph 10iii of the Response. Paragraph 10 offers background facts that explain some of the difficulties the respondents had with staffing levels during the fall of 2011. The respondents allege that these difficulties explain why it did not grant the applicant’s vacation request. Essentially there was a high turnover rate and some employees were ill. Subparagraph 10iii is about one particular employee’s absences from work due to disability or illness. Essentially the amendments requested to subparagraph 10iii add detail and clarify when this other employee was at work and when she was not.

8The Application does not allege that the respondents’ decision to refuse her vacation request is a breach of the Code. The details the respondents seek to add to subparagraph 10iii are also not related to the respondents’ substantive defences; namely, that the applicant was not disabled within the meaning of the Code, or alternatively, that she failed to provide sufficient medical information to the respondents for the purpose of accommodating her disability. This means that the particulars contained in the current paragraph 10iii are offered as background information only. As a result, amending paragraph 10iii to correct or add even more particulars is not necessary. Such particulars are more properly contained within witness statements exchanged under Rule 17 of the Tribunal’s Rules of Procedure. Therefore, the request to amend the Response with respect to paragraph 10iii is denied.

9The second section the respondents seek to amend involves paragraphs 11, 12 and 14 of the Response to the Application. The requested amendments include correction of an error in the vacation period asked for by the applicant. The original Response says the applicant requested November 28, 2011 to December 16, 2011 off as vacation. The amendments would clarify the vacation period requested was actually 2 weeks and not 3 and ran from November 28, 2011 to December 11, 2011. The proposed amendments would also add to the Response the dates when the applicant made her vacation request and when it was denied. The balance of the proposed amendments to paragraphs 11, 12 and 14 are again about absences from work of other employees.

10The additional details the respondents seek to add to paragraphs 11, 12 and 14, regarding when other employers were present or absent on leave, are unnecessary for the same reasons as stated above with respect to subparagraph 10iii. They do not relate to the allegations of discrimination in the Application or to the respondents’ substantive defences. Therefore, the request with respect to those amendments is denied.

11However, when the applicant made her request for vacation and what period the request was for is relevant to one of the respondents’ substantive defences; namely, that the applicant did not have a disability. I say this because it is the respondents’ position that the applicant’s medical leave request was a ruse to permit her to take the vacation she had been denied. The applicant’s response does not object to this part of the RFOP. Therefore, those parts of the request to amend the Response are granted.

THE REQUEST FOR PRODUCTIONS

12The requests for additional productions in the respondents’ RFOP follow a similar request made by the respondents and addressed in the Tribunal’s previous Interim Decision, Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, supra. The respondents sought in their previous RFOP, as they do in this one, credit and bank account statements and telephone records.

13The previous production requests were denied in Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, supra, because it is not sufficient for a party seeking production to simply assert the documents sought are arguably relevant; rather, the party must establish that the documents in question may prove or disprove a fact in issue in the dispute. (See: Le Blanc v. Toronto Transit Commission, 2011 HRTO 1625, at para. 6.) Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, supra, explained that if there was a factual or legal issue in dispute that document production would speak to it was open to the respondents to renew their production requests in another RFOP.

14The current RFOP describes the respondents’ renewed production requests as an invitation to the Tribunal to “reconsider” its previous Interim Decision. Pursuant to Rule 26.1 of the Tribunal’s Rules of Procedure a party can only request reconsideration of a final decision. A final decision is one which finally disposes of an issue. Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, supra, is not a final decision within the meaning of Rule 26.1. Therefore, the Tribunal does not have the jurisdiction to reconsider its previous Interim Decision.

15That being said, for the purpose of this Interim Decision, I am prepared to assume that the current RFOP is meant to address the problem identified in Budd v. 783720 Ontario Inc. o/a Birchmere Retirement Residence, supra, and identify for the Tribunal and the applicant the factual or legal issue in dispute that the productions requested would prove or disprove.

16The respondents request production of: financial records related to possibly cancelled travel arrangements of the applicant and her husband; telephone records of calls to the applicant’s doctor; and telephone records of calls prior to and including October 27, 2011, related to travel.

The Requests Related to Travel

17The RFOP requests an order for production of the following:

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 to other destinations in the United States.

All telephone records of Mr Budd and Ms Budd prior to October 27, 2011 related to ordering or confirming passage to Atlanta Georgia or other destination during a period that includes October 27, 2011.

18These requests for production are denied. Again the respondents’ RFOP does not identify what factual or legal issue is actually in dispute that the requested records would speak to.

19The RFOP indicates this part of the request is related to an allegation that when the applicant’s request for vacation for the period November 28, 2011 to December 11, 2011, was denied on October 27, 2011, the applicant told another employee of the corporate respondent that she had tickets for a trip during the requested vacation period and was planning to go anyway. But the records that have been disclosed by the applicant indicate tickets were purchased after this alleged conversation on October 27, 2011. So the respondent seems to be seeking production that would either confirm or deny that the applicant was telling the truth when she stated to a colleague on October 27, 2011, she had planned a trip and was going anyway.

20Of importance to the respondents’ defence is establishing the vacation was planned prior to November 28, 2011, and the applicant went on the vacation during the same period she claimed she was unable to work due to illness or disability. The applicant admits those facts; they are not in dispute. Whether the applicant made travel arrangements or purchased tickets for the period in question before October 27, 2011, or after that date, is not relevant to any live issues in this Application.

The Request Related to Telephone Calls to the Doctor

21The RFOP requests:

All telephone records of Mr Budd and Ms Budd related to Dr Szelag’s note of November 28, 2011.

22The applicant gave the respondents two medical notes from her doctor and has disclosed her medical records. But the records indicate that the applicant did not have an appointment with her doctor on the date of the second medical note provided. Although the RFOP does not say so, I assume the respondents seek production of the telephone records requested to find out whether or not the second note was requested by telephone. Again the RFOP does not identify in any way what factual or legal issue is in dispute that access to those records will resolve. All the RFOP says is that the telephone records are arguably relevant. Therefore, the request is denied.

THE POSSIBLY RELEVANT DOCUMENT

23At the end of the RFOP, the respondents state they are providing the Tribunal with a copy of a possibly relevant document. Attached to the RFOP is a copy of the applicant’s employment agreement.

24A party need not file arguably relevant documents with the Tribunal unless that party intends to rely on that document at the hearing. Pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure, arguably relevant documents are to be delivered to the opposing party but do not need to be filed with the Tribunal. Rather, pursuant to Rule 16.2, no later than 45 days prior to the hearing, each party must file with the Tribunal a list of documents to be relied on and a copy of each document on that list.

ORDER

25The respondents’ Response is amended as follows:

a. Paragraph 11 now reads:

On October 26, 2011 Ms. Budd requested a vacation for 2 continuous weeks, over the period Monday, November 28, 2011 to Sunday, December 11, 2011.

b. Paragraph 12 now reads:

On October 27, 2011 Ms. Payne denied the October 26, 2011 request given the uncertain future of cooking coverage and its obvious impact on the men and women who live at the Home. The written request with the denial was returned on the day following the request to Ms. Budd by Louise Foster.

c. Subparagraph 14i now reads:

The entire period of the vacation requested from Monday, November 28, 2011 to December 11, 2011; plus

26All other aspects of the RFOP are denied.