Groh v. Waterloo (Regional Municipality), 2014 HRTO 1012

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Groh Applicant

-and-

The Regional Municipality of Waterloo and Canadian Union of Public Employees, Local 1656 Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: July 10, 2014

Citation: 2014 HRTO 1012

Indexed as: Groh v. Waterloo (Regional Municipality)

APPEARANCES

Kelly Groh, Applicant

Brian Kelly, Counsel

The Regional Municipality of Waterloo, Respondent

Carl Peterson, Counsel

Canadian Union of Public Employees, Local 1656, Respondent

Paul O’Ryan, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

request for an order during proceedings - production

2The hearing in this matter commenced on May 16, 2014 and at the outset of the hearing, I heard submissions on the applicant’s Request for an Order During Proceedings (“RFOP”), dated April 24, 2014, seeking:

1. An order that the Respondent, the Regional Municipality of Waterloo (“the employer”) produce:

a. A copy of the videos from the loading dock cameras from 8:30 a.m. to 1:00 p.m. on September 24, 2012;

b. The HR18 Independent Investigator’s Report of Lauren Bernardi and all notes, memoranda, statements and writings supplied to Ms. Bernardi by any employee of the Region;

c. The remaining pages of the Police Statement of Brian Stahle;

d. Brian Stahle’s handwritten daily Diary and Work Record he maintains in an unredacted format for September 24-30, 2012 and for February 28, 2011 including his contemporaneous handwritten notes made at the “discipline meeting”;

e. Ann Steadman’s handwritten notes of any matter in an unredacted form and any file she has with respect to the applicant in an unredacted form;

f. All unredacted handwritten or typewritten notes from all Region Employees present at the January 5, 2011 meeting with the applicant at 150 Frederick Street, Kitchener, Ontario, in particular those of Bev Aikenhead and Rick Elig;

g. The unredacted notes, handwritten and typed, including diary notes of those at the relocation meeting of January 11, 2011 including Zilda Amaral, Steven Fraser and Rick Elig;

h. Unredacted copy of the #6 HR file of the applicant from any supervisor from June 2007 to the present including Michael McMullen, Brian Stahle and Brian Bechtel, including any purged portions; and

i. A complete copy of the applicant’s HR file in addition to the #6 file.

2. An order that the Respondent, Canadian Union of Public Employees, Local 1656 (“the Union”), produce:

a. All notes, emails and/or memoranda that relate to the applicant between December 1, 2010 and the date of the hearing passing between or among the Union’s representatives and/or the executive involving the applicant;

b. All documentation, note, emails and memoranda in the possession of the Union relating to the applicant’s return to work post-September, 2012 not yet produced and up to the date of the hearing;

c. All supporting documentation related to any meeting held with the applicant and/or the Region with, or related to, the applicant, including any handwritten notes, memoranda, letters and emails, including but not limited to the applicant’s grievances 2011-10, 2011-11 and 2011-13; and

d. All documents, notes, emails and memoranda in the possession of the Union relating to the applicant’s return to work in 2013 not yet produced and up to the date of the hearing.

production from the Employer

3The applicant advised it no longer was seeking the documents requested in paragraph 1i, above.

4The employer agreed to produce, or advised it already had produced the documents requested in paragraphs 1a, b, c, e, f, g & h, and where necessary would co-operate to obtain the requested information.

5With respect to the request in paragraph 1d, the applicant advised the employer had provided the requested notes from 2011 and also the record and notes from the September 24, 2012 meeting. The employer had not disclosed any diary entries from Sept 25 to 30, 2012 because the applicant has made no allegations respecting any wrongdoing respecting that time period. However, the employer agreed to produce the diary entries from that time period.

production from the union

6The applicant advised he no longer was requesting the documents listed in paragraph 2b and d, above.

7With respect to paragraph 2a, the applicant stated it did not trust the Union’s productions because of obvious redactions. The Union advised at the hearing that the redactions were inadvertently done by its lawyer’s staff when copying the documents.

8The only notes, emails and/or memoranda that relate to the applicant between December 1, 2010 and the date of the hearing passing between or among the Union’s representatives and/or the executive involving the applicant that had not been produced now have been produced by the Union in correspondence dated May 8, 2014.

9With respect to paragraph 2c, all supporting documentation related to any meeting held with the applicant and/or the Region with, or related to, the applicant, including any handwritten notes, memoranda, letters and emails, including but not limited to the applicant’s grievances 2011-10, 2011-11 and 2011-13 has been produced, recognizing that the applicant was off work and did not return until September, 2012. During that time, there were no grievance meetings and no discussions with respect to the grievances. The grievances then were resolved in the September, 2012 meeting, and the Union’s notes from that meeting were disclosed.

10The applicant accepted the Union’s explanation with respect to disclosure and redaction.

next steps

11There is an outstanding Request for an Order During Proceedings (“RFOP”) with respect to the timeliness of some of the applicant’s allegations, which the parties agreed to argue by way of written submissions in advance of any continuation of the hearing.

order

12The respondents shall provide their written submissions with respect to timeliness by no later than July 22, 2014. The applicant shall provide its responding submissions by no later than August 5, 2014. The respondents shall provide any reply material by no later than August 12, 2014.

13The employer shall produce to the applicant, or provide any consent necessary to obtain, by no later than July 22, 2014 any documentation requested in paragraph 1a to 1h, above, that has not been provided already.