Andrusiek v. Waakohnsuk Native Non-Profit Homes Inc., 2014 HRTO 1088

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diana Andrusiek

Applicant

-and-

Waakohnsuk Native Non-Profit Homes Inc.

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 24, 2014

Citation: 2014 HRTO 1088

Indexed as: Andrusiek v. Waakohnsuk Native Non-Profit Homes Inc.

WRITTEN SUBMISSIONS

Diana Andrusiek, Applicant

Christopher Robertson, Counsel

1By Application filed on July 16, 2013, the applicant alleged that the respondent discriminated against her because of disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondent terminated her employment because it did not wish to accommodate any future disruptions in her work caused by her disability and the increased likelihood of such disruptions due to her age.

2In its Response, the respondent submits that it terminated the applicant’s employment due to incompetence and gross violations of policy, especially on financial matters.

3This Interim Decision addresses the applicant’s request for the disclosure and production of arguably relevant documents.

Disclosure Obligations of the Parties

4By Notice of Hearing (“Notice”) dated May 1, 2014, the Tribunal advised the parties that the hearing of this Application was scheduled for November 3 and 4, 2014. The Notice advised the parties of the procedure for the disclosure of documents and witness statements that is set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules”). It also advised the parties of the deadline for each of the two stages of the Tribunal’s disclosure process.

5The first stage of the disclosure process is set out in Rule 16.1 of the Tribunal’s Rules. Rule 16.1 requires parties to disclose to each other all arguably relevant documents in their possession no later than 21 days after the Notice of Hearing. Rule 16.1 states as follows:

Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

a copy of each document contained on the list, excluding any documents for which privilege is claimed.

6The Notice advised the parties that the deadline for the disclosure required under Rule 16.1 was May 22, 2014.

7The second stage of the disclosure process is set out in Rules 16.2, 16.3 and 17 of the Rules. Rules 16.2 and 16.3 require parties to deliver to each other and file with the Tribunal a list of documents that the party intends to rely on at the hearing. These Rules also require parties to deliver to each other and file with the Tribunal a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

8Rule 17 requires parties to deliver to each other and file with the Tribunal a list of witnesses the party intends to present to the Tribunal and a brief statement summarizing each witness’ expected evidence.

9The disclosure under Rules 16.2, 16.3 and 17 must be made no later than 45 days prior to the first scheduled day of hearing. The Notice advised the parties that the deadline for the disclosure required under Rules 16.2, 16.3 and 17 is September 19, 2014.

10The applicant delivered and filed the disclosure required under Rule 16.1 on May 21, 2014. However, the respondent did not make the disclosure required under Rule 16.1.

Applicant’s Production request

11By e-mail dated June 3, 2014, the applicant’s counsel advised the respondent’s counsel that he had failed to deliver to the applicant any arguably relevant documents required to be disclosed under the Tribunal’s Rules. The respondent’s counsel replied that the documents provided with the respondent’s Response are the documents that will be relied upon by the respondent.

12By Request for Order During Proceedings (“RFOP”) dated June 18, 2014, the applicant requested production of all arguably relevant documents in the respondent’s possession as required under Rule 16.1. The applicant noted that the documents attached to the Response demonstrate that there exists other arguably relevant documentation not disclosed by the respondent. In particular, the applicant sought production of cancelled cheques refuting the respondent’s allegations of impropriety and the minutes of Directors’ meetings at which the applicant’s employment was discussed.

13The respondent did not respond to the applicant’s RFOP.

Decision

14The respondent has to date only disclosed documents it intends to rely upon at the hearing to make out its case. Based on the e-mail communications from the respondent’s counsel to the applicant’s counsel, the respondent appears to believe that it is only required to disclose to the applicant documents it intends to rely upon at the hearing. This is incorrect. As noted above, under Rule 16.1 of the Rules, parties are required to disclose “all arguably relevant documents in their possession.”

15The respondent is ordered to disclose to the applicant all documents in their possession that are relevant to the issues raised in the Application. In particular, the respondent is ordered to produce the documentation sought by the applicant in her RFOP. In my view, these documents are arguably relevant to the issues raised in the Application.

16In her Application, the applicant claims, among other things, that she was terminated because she was required to take a leave of absence to receive and recover from cancer surgery. She alleges that she was replaced by the temporary employee hired to perform her role in her absence who is more than 20 years younger than her. As noted above, the respondent claims that the applicant’s employment was terminated due to incompetence and gross violations of policy, especially on financial matters.

17In my view, the cancelled cheques sought by the applicant are arguably relevant to determining whether her disability or age were factors in her termination or whether, instead, her termination was related to the incompetence and gross violations of policy claimed by the respondent. I also find that the minutes of Directors’ meetings at which the applicant’s employment was discussed are arguably relevant as these minutes may shed light on the reasons for the applicant’s termination.

Order

18For the reasons set out above, the applicant’s request for production is granted. Within 21 days of the date of this Interim Decision, the respondent is ordered to disclose to the applicant all arguably relevant documents in its possession as required under Rule 16.1.

19Without limiting the generality of the foregoing, the respondent is ordered to produce to the applicant the cancelled cheques sought by the applicant in her RFOP as well as minutes of Directors’ meetings at which the applicant’s employment was discussed.

20I am not seized.