HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tonka Misetich
Applicant
-and-
Value Village Stores Inc. and Savers Inc.
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Misetich v. Value Village Stores Inc.
APPEARANCES
Tonka Misetich, Applicant
Self-represented
Value Village Stores Inc. and Savers Inc., Respondents
Kathryn Bird, Counsel
Introduction
1This is an Application filed under s. 34 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, family status and reprisal.
2The applicant alleges that she was discriminated against when the respondent, Value Village Stores Inc. (“Value Village”), proposed to accommodate her workplace injury in January 2013 by providing her with temporary modified duties that involved a shift change from her day shift to the night shift. The applicant alleges Value Village could have accommodated her on her regular day shift, and alleges further that the proposed accommodation and accompanying shift change interfered with her eldercare responsibilities to her mother.
3This matter was set down for hearing by Notice of Hearing dated July 4, 2014. The hearing is scheduled for December 17 and 18, 2014 in St. Catharines, Ontario. Under the Notice of Hearing, the parties’ arguably relevant documents were to be exchanged by July 25, 2014 and their pre-hearing documents were to be filed by November 3, 2014.
4On October 29, 2014, the respondents filed a Request for Order During Proceedings seeking the following documents from the applicant:
a. Medical documentation regarding the applicant’s workplace injury;
b. The applicant’s WSIB file;
c. Medical documentation regarding the applicant’s mother’s inability to care for herself.
d. Documentation outlining the applicant’s attempts to locate care for her mother;
5The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The respondents have the burden of demonstrating that the documents sought are “arguably relevant” to the issues in dispute in the proceeding before the Tribunal.
6In order to prove a case of discrimination on the basis of family status, the applicant must establish, in part, that her eldercare responsibilities engage a legal responsibility, and not a personal choice. The applicant must also show that she made reasonable efforts to meet her eldercare responsibilities through reasonable alternative solutions, and no other solution was available. In light of these requirements, any documents regarding the applicant’s mother’s ability to care for herself and the applicant’s attempts to locate alternative care for her mother, are arguably relevant and must be produced. See Wing v. Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472.
7Value Village offered temporary accommodation to the applicant by letter of January 10, 2013. It did not dispute the applicant’s need for accommodation at that time. As such, it is not clear to me that the applicant’s medical documentation regarding her workplace injury and her WSIB file are arguably relevant to the issues in dispute between the parties. If, after hearing the applicant’s evidence, it appears that this information is relevant, the respondents can renew their request for production at that time.
order
8The applicant must produce to the respondents the following documents:
Any medical documentation regarding the applicant’s mother’s inability to care for herself from January 2013 to October 2013.
Any documentation outlining the applicant’s attempts to locate care for her mother from January 2013 to October 2013.
9This documentation must be produced by December 5, 2014.
Dated at Toronto, this 24th day of November, 2014.
Signed by
Jennifer Scott
Vice-chair