Courtney Cickello v. Keystone Mechanical Group Inc., 2013 HRTO 326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Courtney Cickello

Applicant

-and-

Keystone Mechanical Group Inc.

Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: February 26, 2013 Citation: 2013 HRTO 326 Indexed as: Cickello v. Keystone Mechanical Group Inc.

WRITTEN SUBMISSIONS

Courtney Cickello, Applicant Kingsley Laurin, Counsel

Keystone Mechanical Group Inc., Respondent Muneeza Sheikh, 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 sex. This Interim Decision addresses the applicant’s request for the production of documents and further particulars.

2The applicant began working for the respondent in July 2011. She became pregnant in October 2011 and told the respondent this on October 20, 2011. On October 25, 2011, the applicant’s employment was terminated. The applicant alleges this termination was related to her pregnancy. The respondent submits that the applicant’s pregnancy was not a factor in its decision to terminate the applicant’s employment, that the issue was the applicant’s sub-standard work performance and erratic attendance.

3On February 15, 2013 the applicant filed a Request for an Order during Proceedings (“RFOP”) asking that the Tribunal order the respondent to produce all medical notes and/or files relating to the visits of Margherita D’Agostino (also known as Margherita Giammaria) to Dr. Ceolin-Weitfeldt’s office on September 9, 29 and October 28, 2011, as well as the medical notes and files related to Ms. D’Agostino’s request to Dr. Ceolin-Weitfeldt for the letter dated February 1, 2012. The applicant further requests that the Tribunal order the respondent to produce more detailed witness statements for Margaret D’Agostino and Dominic D’Agostino.

4The respondent opposes these requests. The respondent submits that there is no direct link between the requested medical documents and the applicant’s complaint. The respondent submits that the applicant would not be prejudiced if these documents were not produced, that Ms. D’Agostino’s privacy should be protected and that the applicant will have the opportunity to cross-examine Dr. Ceolin-Weitfeldt about the February 1, 2012 letter and its contents as the respondent intends to call Dr. Ceolin-Weitfeldt as a witness. The respondent submits that it has already disclosed detailed witness statements for Margaret D’Agostino and Dominic D’Agostino which summarize their intended evidence.

DECISION

Request for Production

5The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. See Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at paragraph 38.

6The applicant’s request for medical documents is granted, in part. I am satisfied that there is a nexus, a connection, between the requested medical documents and the allegations the applicant has raised in the Application. The respondent has filed a letter dated February 1, 2012, from Dr.-Ceolin-Weitfeldt stating that Margherita D’Agostino was a patient who Dr.-Ceolin-Weitfeldt saw on September 9, 29 and October 28, 2011 and that during these visits Ms. D’Agostino told her of a recently hired employee displaying inappropriate work ethics, that this employee was causing Ms. D’Agostino further anxiety because of her work and that this employee had been dismissed for her poor performance and behaviour. I am satisfied that medical notes and/or files related to these visits would provide information directly related to the respondent’s contention that the applicant’s employment was terminated for performance related reasons and as such these documents are arguably relevant. The fact that Dr.-Ceolin-Weitfeldt may be available for cross-examination does not render these documents superfluous or not arguably relevant.

7I also find any documentation related to Ms. D’Agostino’s request to Dr.-Ceolin-Weitfeldt’s for the February 1, 2012 letter may be arguably relevant and it, too, must be produced.

8I am mindful of the issue raised by the respondent about the importance of privacy in relation to medical documents. Accordingly, the respondent is directed to provide the medical notes/files related to Ms. D’Agostino’s September 9, 29 and October 28, 2011 visits to Dr.-Ceolin-Weitfeldt with any information in these materials not related to Ms. D’Agostino’s concerns about an employee’s work redacted. I note that it is not so clear whether documents related Ms. D’Agostino’s request for the February 1, 2012 letter would contain personal medical information unrelated to the request for the letter. If they do personal medical information should be redacted.

9The respondent is ordered to provide these documents to the applicant by March 8, 2013. If the applicant intends to rely on any of these documents she is ordered to file them with the Tribunal and provide copies to the respondent by March 14, 2013.

Request for Particulars

10The applicant’s request for more detailed witness statements from Margaret D’Agostino and Dominic D’Agostino is granted. I have reviewed the documents filed by the parties, including the Application, the Response, the Reply and the witness statements. It is evident that a key issue at the hearing of the Application will be the respondent’s claim that the applicant’s job performance was sub-standard.

11The witness statements for Margaret D’Agostino and Dominic D’Agostino indicate that the respondent had a number of issues regarding the applicant’s performance including her punctuality and general attitude in the work place. The witness statements indicate that Margaret D’Agostino and Dominic D’Agostino will, as part of their testimony, provide the Tribunal with examples of the deficiencies in the applicant’s work. They will testify that they raised some of these issues with the applicant, that the applicant was hostile to criticism and that the applicant’s behaviour in the workplace was unprofessional.

12I find that these witness statements do not particularize the respondent’s issues. In my view the applicant should have a clearer indication of what concerns and issues the respondent is saying it had with the applicant.. Accordingly, the respondent is directed to provide revised witness statements for Margaret D’Agostino and Dominic D’Agostino that will provide particulars detailing the issues of concern to the respondent about the applicant’s performance and behaviour so that the applicant can address these issues in her evidence. The respondent is directed to file revised witness statements for Margaret D’Agostino and Dominic D’Agostino with the Tribunal and to provide copies to the applicant by March 8, 2013. If the applicant wishes to amend her witness statement in response she is to do so by March 14, 2013

ORDERS

1. The respondent is ordered to produce the medical notes/files related to Ms. D’Agostino’s September 9, 29 and October 28, 2011 visits to Dr.Ceolin-Weitfeldt along with any documentation related to the respondent’s request for the February 1, 2012 letter from Dr.-Ceolin-Weitfeldt. Any information in these documents not related to Ms. D’Agostino’s concerns about an employee’s work is to be redacted.

2. The respondent is ordered to provide these documents to the applicant by March 8, 2013. If the applicant intends to rely on any of these documents she is ordered to file them with the Tribunal and provide copies to the respondent by March 14, 2013.

3. The respondent is ordered to provide revised witness statements for Margaret D’Agostino and Dominic D’Agostino in order to provide more particulars about the issues of concern to the respondent about the applicant’s performance and behaviour and to do so by March 8, 2013. If the applicant intends to amend her own witness statement in response she is ordered to file an amended witness statement with the Tribunal and provide a copy to the respondent by March 14, 2013.