Labao v. Toronto Police Services Board, 2013 HRTO 723

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Labao

Applicant

-and-

Toronto Police Services Board

Respondent

-and-

Toronto Police Association

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: April 30, 2013

Citation: 2013 HRTO 723

Indexed as: Labao v. Toronto Police Services Board

APPEARANCES

Linda Labao, Applicant

Erin Hallock, Counsel

Toronto Police Services Board, Respondent

Patricia Murray, Counsel

Toronto Police Association, Intervenor

Roger Aveling, Counsel

Introduction

1This is an Application filed on June 29, 2011, under section 34 of Part IV 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, sex, sexual orientation and marital status.

2The applicant alleges discrimination as a result of a work injury and a failure to accommodate her in the workplace. The applicant also alleges differential treatment based on her sex, sexual orientation and marital status as a woman in a same-sex marriage. Both the applicant and her spouse work as court officers for the respondent organization.

3The applicant suffered a workplace injury on July 17, 2008. The applicant alleges that, although regular practice is for respondent management to attend the hospital with an injured worker, no supervisor attended the hospital with her. The applicant alleges that when she was injured, her supervisor advised her spouse to take her to the hospital.

4The applicant alleges that the respondent did not promptly return her to work despite medical clearance. The applicant alleges that upon her return to work, she experienced difficulties receiving payment of her salary and administrative problems with respect to the processing of her workers’ compensation file.

5The applicant was again intermittently absent from work due to her disability. Specifically, the applicant was off work for the following periods:

(a) July 18, 2008 through August 20, 2008;

(b) September 18, 2008 through December 23, 2009;

(c) March 3, 2010 through June 28, 2010; and

(d) November 27, 2010 to date of filing of Application (and ongoing at the date of filing of the Application).

6The applicant alleges that she and her same-sex partner were married in January 2009. The applicant alleges that their marriage was viewed with less respect within the workplace than a heterosexual marriage.

7The applicant underwent surgery in April 2009. The applicant alleges that after this surgery a year and a half passed without any contact from the respondent, even though the organization’s regular practice is to maintain contact and conduct “wellness visits”.

8The applicant alleges that when she returned to work in June 2010 she experienced problems with respect to receiving appropriate and meaningful modified duties, was denied training opportunities and further alleges mistreatment with respect to receiving support for attending appointments. She says that while fundraising efforts have been undertaken for other employees, no such campaigns took place to assist with her travel to Italy for a medical procedure.

9The applicant alleges that in October 2010 the respondent informed her that either she or her spouse had to be transferred to a different work location and that they would no longer be provided accommodating shifts. The applicant alleges that in November 2010 she informed the respondent that the failure to provide her and her spouse with accommodating shifts had a negative impact on her health with respect to medications and side effects.

10The applicant alleges that in June 2011, the respondent cleaned out her locker and posed questions about her to her spouse without first consulting her.

11This matter has been set down for hearing on May 13, 14 and 15, 2013.

12On March 20, 2013, the Tribunal issued an Interim Decision, refusing a request by the applicant to amend her Application to include events that she alleges constitute a continuing breach of her rights under the Code that took place from March 2012 onwards. See Labao v. Toronto Police Services Board, 2013 HRTO 474.

13The Tribunal held that given the type of inquiry the additional allegations would require, the significant issues that they introduced (such as the use of medical marijuana as a form of accommodation) and the fact that the request was made following the original exchange of pleadings, mediation, exchange of arguably relevant documents and on the eve of the hearing commencing, the amendment request would be denied and it was open to the applicant to file a new Application, which she has done.

14The purpose of this Interim Decision is to address requests filed by both parties for production of documents each argue are arguably relevant, filed on March 12, 2013 (respondent’s RFOP) and March 26, 2013 (applicant’s RFOP) respectively. Form 11s responding to each RFOP have also been received.

15A teleconference was convened on April 23, 2013 to hear any additional submissions the parties wished to make in addition to those contained in their written materials. I heard from the applicant and respondent during the call. Counsel for the intervenor union attended but made no submissions with respect to the production issues.

DECISION

16The parties rely on Rule 1.7 of the Tribunal’s Rules of Procedure in general, and paragraphs (p) and (w) of that Rule in particular, in support of their respective requests, which reads as follows:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form;

(w) take any other action that the Tribunal determines is appropriate.

17It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

18In paragraphs 12 and 13 of McKay v. Toronto Police Services Board, 2009 HRTO 1220, the Tribunal held as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. 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.

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. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

19As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, this is a relatively low threshold for the requesting party to meet. However, as the Tribunal stated in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at paragraph 10:

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or if the timing of the request risks derailing a just and expeditious hearing.

20The Tribunal in Lampi (supra) also went on to point out that:

The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.

21I deal below with the requests made by each party in turn.

Respondent’s Request:

22In the RFOP, the respondent sought production of the MAS, or Medical Advisory Service, file, the OHS file and the file maintained by the WSIB with respect to the applicant’s workplace injury of July 2008. Both the MAS and OHS are departments within the respondent organization.

23By the time the teleconference was held, the applicant had provided consent or released the information in the MAS file. As a result, the remaining issues for me to decide with respect to the respondent’s RFOP are access to the OHS file and production of the WSIB file.

24Given the allegations regarding the conduct of members of OHS personnel involved in the applicant’s case, the file maintained by that department is arguably relevant to the issues before me in this Application. Disclosure of materials in that file for the relevant time period at issue in this Application (July 18, 2008 through to June 29, 2011) should be made within 3 days of the date of this decision.

25The applicant argues that production of the WSIB file in its entirety is unnecessary as she has provided all arguably relevant material in the file to the respondent already, as the Tribunal’s rules contemplate. Furthermore, she argues that there is no dispute as to the existence of a disability, as defined under the Code, and the restrictions that flow from that disability. As such, she argues, the request for the material in the WSIB file is unnecessary as it is overly broad and does not take into account the applicant’s legitimate and significant privacy interests.

26The respondent says that the respondent is entitled to review the file in its entirety, at least for the period covering the material time, in order that it can explore and advance all defences available to it.

27A number of parties were involved in the accommodation process that took place following the applicant’s workplace injury in July, 2008. In addition to the applicant, her union and the respondent employer, the WSIB also played a role in some aspects of what transpired in the three-year period in question, during which the applicant alleges she was not appropriately accommodated and, during which, she alleges, among other things, that she experienced administrative problems in the processing of her WSIB file.

28Given the central nature of these allegations to the applicant’s claim of discrimination, I find that the information in the WSIB file in its entirety, for the period between July 18, 2008 (the date of the applicant’s workplace injury) and June 29, 2011 (date of filing of this Application), is arguably relevant. The applicant is directed to produce the information in the WSIB file relating to the time period specified above to the respondent within 3 days of the date of this decision.

29The parties are, of course, reminded of their obligation to treat sensitive medical information with the utmost care and to be mindful of their responsibility to ensure that the material that is produced is not used for any purpose other than this proceeding.

Applicant’s Request

30The applicant seeks production of the following categories of documents and information:

With respect to the time period of July 2008 to June 11, the applicant seeks:

(a) A list of all of the Respondent’s employment positions across all locations that court officers may fill which involve administrative duties;

(b) A summary of the Respondent’s actions in assigning court officers to administrative duties as a workplace accommodation of their disabilities;

(c) A summary of the Respondent’s actions in scheduling court officer employees for non-rotating or other accommodated shifts, including specific indication of whether or not such employees were scheduled in this manner due to Code-related grounds;

(d) A summary of the Respondent’s actions in making supervisory or wellness contacts and visits to court officer employees injured on duty and/or on medical leaves of absence;

(e) A summary of the Respondent’s actions in providing additional actions in providing additional support and/or assistance to court officer employees injured on duty and/or on medical leaves of absence, such as initiating fund-raising campaigns and providing assistance with daily activities (ie transportation to medical appointments;

(f) Addressed in advance of teleconference; and

(g) A summary of all of the respondent’s court officer employees who are immediate family members and/or married or common law spouses and have worked at the same location and/or under the same supervisors.

31Categories (b), (c), (d), (e) and (g) are further broken down by the applicant. She seeks to have each employee identified, the specific actions taken in each case itemized and information about their Code related characteristics, specifically disability, sex, sexual orientation and marital status provided.

32I note, as a starting point, that the respondent has indicated that it does not keep records regarding the sexual orientation of any of its employees. I also understand that there are approximately 600 court officers employed by the respondent.

33The applicant’s complaint is that she was discriminated against in a number of specific instances. I am of the opinion that there is no foundation for the overly broad request to canvass likely hundreds of the respondent’s employee files over a three-year period to gather the information that she seeks in paragraphs (b) through (g) of her request.

34This is not a case in which systemic discrimination is being alleged. Although the applicant’s argument is that while she is not alleging systemic discrimination, she seeks this information to prove that she is an outlier, I do not accept that, without a factual foundation that is more than a generalized assertion to that effect, she is entitled to review, or seek to have the respondent employer review, the employment files of approximately 600 employees, all of whom have legitimate privacy interests of their own and produce the detailed reports that she seeks.

35I agree with the applicant’s position that there are instances in which statistical information or the experience of others may be relevant to a complaint of individual discrimination. However, the applicant’s request is, in my opinion, speculative; she wishes to review records with the hopes of finding something useful to assist in the presentation of her case. Ordering production of documents is not done for this purpose; there must be an established foundation for a request.

36At present, I find that the applicant has not established such a foundation. It is open to the applicant to renew her request if such a foundation is established during the course of the hearing.

37In my view, the request that she makes in paragraph (a) is arguably relevant to the proceedings and production of the list of positions and the job descriptions would not cause prejudice to the respondent in a manner that is disproportionate to the probative value of the material sought. The documents should be produced within 3 days of the date of this decision.

38The Tribunal orders as follows:

1. The applicant is directed to produce materials in the OHS file (or provide consent for the respondent to access same) and the WSIB file for the period of July 18, 2008 through to June 29, 2011 to the respondent within 3 days of the date of this decision.

2. The respondent is directed to produce a list of all of the respondent’s employment positions across all locations that court officers may fill which involve administrative duties for the period of July 18, 2008 through to June 29, 2011 to the applicant within 3 days of the date of this decision;

3. The parties may file additional documents they intend to rely upon arising from the production of these materials by May 8, 2013.