Jessica Larabee v. YWCA Sudbury, 2013 HRTO 947

Human Rights Tribunal of Ontario

B E T W E E N:

Jessica Larabee

Applicant

-and-

YWCA Sudbury

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 29, 2013

Citation: 2013 HRTO 947

Indexed as: Larabee v. YWCA Sudbury

WRITTEN SUBMISSIONS

Jessica Larabee, Applicant

Self-represented

YWCA Sudbury, Respondent

Kathleen Stokes, Counsel

Introduction

1This Interim Decision addresses the production requests filed by each party in this matter.

2The applicant claims that the respondent discriminated against her because of sex contrary to the Human Rights Code, R.S.O. c. H.19, as amended (the "Code") when it asked her personal questions and denied her access to its Genevra House Shelter Program. Specifically, the applicant is a transsexual woman who sought access to the respondent's shelter for women and children escaping domestic abuse. The applicant alleges that one of the respondent's employees asked her inappropriate personal sexual questions when she called the respondent to seek access to its shelter. She also alleges that the respondent discriminated against her by refusing her access to its shelter.

Production of Documents

3It is well-established that a party seeking production of documents must demonstrate that the information is "arguably relevant" to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220 ("MacKay").

4The "arguable relevance" threshold has been described as "not a particularly high bar". See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, at para. 8, and the cases cited therein. While "arguable relevance" may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after material(s) and the subject-matter of the application.

Respondent's Production Request

5The respondent filed a Request for Order During Proceedings ("Request") on October 3, 2012 seeking the following particulars and production of the following materials:

a. The name and location of the coffee shop from which the applicant called the respondent on July 8, 2011 at approximately 1:30 a.m. and the location of the pay phone in this coffee shop.

b. The type of device that was used to record the conversation including the make and model.

c. The applicant's personal telephone records including her home phone and cell phone records (if applicable) from July 8, 2011.

d. The name and address of the intimate partner who was allegedly abusing the applicant who she refers to in her Application.

6The respondent submits that the requested particulars and documents are necessary to establish that the applicant was actually in Sudbury at the relevant time. The respondent submits that some doubt arises from the lack of particulars in the Application as well as the fact that the recording of the phone call which the applicant posted online was extremely clear.

7The applicant did not file a Response to the respondent's Request. However, she did file correspondence with the Tribunal claiming she was in Sudbury at the time of the incident.

8I find that the information being sought in subparagraphs 5. (a) to (c) above is arguably relevant to whether the applicant's Code rights were infringed. Therefore, I direct the applicant to produce the particulars and documents sought in subparagraphs 5. (a) to (c) above. I find that it is not appropriate to order disclosure of the information sought in subparagraph (d) above as there is a chance that it would pose a risk to the applicant's personal safety.

Applicant's Production Request

9On November 14, 2012, the applicant filed a Request for particulars and production. In the Request, she seeks the following:

a. The last name of the respondent's employee, Joelle, who she spoke when she contacted the respondent on July 8, 2011.

b. The respondent's written policy and procedure on how to accommodate transgendered people.

c. An explanation as to why the respondent asked her personal sexual questions.

10The respondent submits that it does not have any obligation to disclose the names of its employees to the applicant. The respondent states that it does not have a written policy on the accommodation of transgendered persons but instead a practice that is consistently followed.

11In answer to the applicant's third request for particulars, the respondent states that the Genevra House Shelter Program provides, among other things, a secure shelter environment to women and children who are escaping abuse. The mission of Genevra House Shelter Program is to provide services for this identifiable group of persons. The respondent states that it is equipped to offer services only to this identifiable group of persons. The respondent denies that it asked the applicant personal sexual questions, but submits that it was necessary to ask the applicant appropriate personal questions to determine whether or not the applicant qualified to attend the shelter.

12I find that the last name of the respondent's employee who spoke to the applicant when she called is not arguably relevant to any issue before me. I find that the information included in the respondent's Response to the applicant's Request provides sufficient particulars to respond to her Request.

other Issue

13In a letter dated September 5, 2012, the respondent requested that the Application be dismissed as an abuse of process. In support of this request, the respondent alleged that the applicant had recorded the mediation that was held in this matter by teleconference despite being told not to do so by the Vice-chair conducting the mediation. The respondent also alleged that the applicant told the Vice-chair conducting the medication that she would be posting the recording on You Tube. By correspondence dated September 5, 2012, the applicant denied recording the mediation or threatening to post the recording on You Tube. The respondent is directed to advise the Tribunal whether it still intends to pursue the request set out in its September 5, 2012 letter.

ORDER

14In light of the above, the Tribunal orders as follows:

a. Within 21 days of the date of this Interim Decision, the applicant shall provide the respondent and the Tribunal with the following particulars:

• The name and location of the coffee shop from which she called the respondent on July 8, 2011 at approximately 1:30 a.m. and the location of the pay phone in this coffee shop.
• The type of device that was used to record the conversation including the make and model.

b. Within 21 days of the date of this Interim Decision, the applicant shall produce to the respondent, and file with the Tribunal, her personal telephone records including her home phone and cell phone records (if applicable) from July 8, 2011.

c. Within 28 days of this Interim Decision, the respondent shall advise the Tribunal, with a copy to the applicant, whether it still intends to pursue the request set out in its September 5, 2012 letter. If so, it should file a Form 10 to make a Request for Order During Proceedings.