Ifrah v. National Income Protection Plan Inc., 2014 HRTO 1069

Human Rights Tribunal of Ontario

B E T W E E N:

Hana Ifrah

Applicant

-and-

National Income Protection Plan Inc.

Respondent

-and-

Oncidium Health Group and AIM Health Group

Affected Parties

INTERIM DECISION

Adjudicator: Mark Hart Date: July 22, 2014 Citation: 2014 HRTO 1069 Indexed as: Ifrah v. National Income Protection Plan Inc.

WRITTEN SUBMISSIONS

Hana Ifrah, Applicant Michelle Mulgrave, Counsel

National Income Protection Plan Inc., Respondent Vilija Ycas, Representative

1This Application is dated April 22, 2013, and alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing in this matter is scheduled to proceed in Toronto on August 11, 2014.

3On June 24 and 25, 2014, the applicant filed two Requests for Orders, one seeking production of certain documents pertaining to a co-worker of the applicant, Michelle Braga, from the respondent, and the second seeking production of the same documents from two third parties to this proceeding: one being Oncidium Health Group (“Oncidium”) which is the former employer of the applicant and Ms. Braga; the other being AIM Health Group (“AIM”), which became the employer of both these individuals in 2011.

4By Response filed July 18, 2014, the respondent largely agreed to disclose the documents requested, noting that the document requested in para. 7(i) of the applicant’s Request already had been disclosed and filed with the Tribunal and agreeing to the production of the documents requested in paras. 7(iii) and (iv).

5With regard to the applicant’s request for production of the documents listed at para. 7(v), the respondent consents to production of e-mail correspondence between Ms. Braga and Clifford Rhee, evidencing Ms. Braga providing Mr. Rhee with a copy of her payslip in order to receive the retention bonus.

6The respondent objects, however, to producing an unredacted copy of the payslip itself, taking the position that the portions of her payslip that reflect Ms. Braga’s hours, pay rate, tax credits, earnings, home address, benefits, and withholdings should be redacted. In this regard, I note that the document filed by the respondent with the Tribunal in respect of Ms. Braga already discloses her annual salary, benefits, seniority date and the amount of her retention bonus. In my view, the only private information that should properly be subject to redaction in the payslip is Ms. Braga’s home address.

7In para. 7(ii), the applicant requests a list of all absences from the workplace pertaining to Ms. Braga for the 12-month period following the date she signed the Key Employee Retention Plan Letter. In fact, under the terms of this letter as already filed with the Tribunal, the relevant period at issue is from July 1, 2011 to June 30, 2012. The respondent states that these records are not in its possession.

8The same records are sought in the applicant’s Request for production from the third parties Oncidium and AIM, at para. 6(ii). Pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure, this Tribunal has the power to “require a party or other person to produce any document, information or thing . . .” The applicant has filed a Statement of Delivery evidencing that her Request was served on both Oncidium and AIM. Neither Oncidium nor AIM filed a Response to this Request, and the time for doing so has expired.

9The issue in this proceeding is whether it amounts to discrimination because of sex for the respondent to have denied paying the retention bonus to the applicant because she was on maternity leave during the final month of the retention period. The respondent takes the position that it was not required to pay the retention bonus because the applicant was not an active employee for the full 12-month period. In relation to the position taken by the respondent, the applicant points to Ms. Braga, who she says was absent from the workplace in 2011 and 2012, yet nonetheless received the retention bonus.

10In my view, information regarding Ms. Braga’s absences from the workplace during the 12-month retention period is arguably relevant to this proceeding, and I order this information to be produced. While it is likely that the relevant information is in the possession of AIM rather than Oncidium, given that AIM assumed operational responsibility for the merged company created by the merger of Oncidium and AIM effective July 1, 2011, my Order will apply to both of these third parties to ensure that the requested information is produced. If Oncidium still exists separate from AIM and does not have possession of the relevant information, it can simply so notify the Tribunal and the parties.

ORDER

11Within seven calendar days of the date of this Interim Decision, the following documents and/or information shall be disclosed to the parties to this proceeding and filed with the Tribunal:

a. The respondent shall disclose to the applicant and file with the Tribunal:

i. A copy of the cheque issued to Ms. Braga showing the date when she received her retention bonus;

ii. The Full and Final Release executed by Ms. Braga whereby she acknowledges receipt of the retention bonus;

iii. Copies of e-mail correspondence between Ms. Braga and Mr. Rhee evidencing Ms. Braga providing Mr. Rhee with a copy of her payslip for the period up to and including June 30, 2012; and

iv. A copy of the payslip provided by Ms. Braga, with her home address redacted; and

b. Oncidium Health Group and AIM Health Group shall disclose to the applicant and the respondent and file with the Tribunal a list of all absences from the workplace pertaining to Ms. Braga for the 12-month period from July 1, 2011 to June 30, 2012.