Budd v. McDougall, 2014 HRTO 172

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Budd

Applicant

-and-

Celia McDougall and Roy McDougall

Respondents

Interim Decision

Adjudicator: Kathleen Martin

Date: February 5, 2014

Citation: 2014 HRTO 172

Indexed as: Budd v. McDougall

1This Interim Decision confirms an oral ruling for production of documents from Craiglee Nursing Home, as well as providing additional directions to the parties regarding the same.

BACKGROUND

2This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability and age. The background to the Application is set out in a number of earlier Interim Decisions (see, for example, 2013 HRTO 93 and 2013 HRTO 1763).

3The Application arises out of the applicant’s employment with Craiglee Nursing Home (“Craiglee”) during the period that the named respondents owned and/or managed Craiglee. The applicant alleges that she was refused accommodation on the basis of disability and that she was discriminated against based on age in a comment made by the respondent Ms. McDougall. During the relevant period applicable to the applicant’s allegations, Mr. McDougall was the owner and administrator (the latter for only part of the time) and Ms. McDougall was the secretary and assistant administrator/ administrator (the latter depending on the timeframe).

4The Application is scheduled for hearing on March 18 and 19, 2014.

5On January 31, 2014, the Tribunal held a conference call hearing to consider a request by the respondents to access the applicant’s employment record at Craiglee in respect of the period January 2005 to the present for the purpose of responding to the allegations in the Application.

6At the hearing, I sought submissions from the parties as to the scope of the request. After hearing from the parties, the request was clarified as follows:

Copies of any documents and information contained in the employee file of Elaine Budd at Craiglee Nursing Home concerning injuries sustained by Ms. Budd and any accommodation of such injuries and any payroll records in respect of the period January 1, 2005 to April 30, 2009.

7In addition, during the hearing, I ruled that the documentation and information sought was arguably relevant to the issues in the Application and that subject to notice to Craiglee, the Tribunal would order that Craiglee produce a copy of the documents and/or information to the respondents.

8I now confirm that ruling and provide reasons for it as well as providing further directions to the parties regarding the same. Given that the respondents are expected to obtain documents and information from Craiglee, the respondents will be given the opportunity to submit further disclosure of documents and witness statements.

9In setting out the deadlines below, I have extended the deadlines from those given orally to accommodate the receipt of Craiglee’s full contact details.

Reasons for Oral Ruling

10Section 1.7 p) of the Tribunal’s Rules of Procedure provides:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

11The respondents were the owner and/or managers of Craiglee during the relevant time applicable to the allegations in the Application. However, neither respondent has any ongoing involvement with Craiglee as an owner and/or manager and/or employee. In the circumstances, the respondents have submitted that they have no access to documents that may be relevant to their response to the issues in the Application and that the records exist at Craiglee.

12Having regard to the foregoing, I found it appropriate to order that Craiglee produce the documents and/or information as set out in paragraph 6 above to ensure that the respondents have an opportunity to have access to documents that may be relevant to their response. In the absence of such documents being available to the respondents their response to the allegations may be prejudiced.

13In making this decision I acknowledge the applicant’s frustration with the timing of the respondents’ request. However, this does not change my view that the material sought is arguably relevant. I note that notwithstanding this order, the applicant is not precluded from making any objection to the admission of the documents in the proceeding on the basis of relevancy and/or prejudice to her. Any such objections will be addressed in the course of the proceeding.

14In the normal course, requests for production from non-parties are served on them so they can have an opportunity to respond. This was not done in this case so I find it appropriate to provide Craiglee with an opportunity to make submissions on this issue. If Craiglee objects to the production of the documents and information, Craiglee shall provide complete submissions in support of its objection to the Tribunal with a copy to the parties in the Application by February 12, 2014. Absent any objection, Craiglee shall comply with the production order by February 13, 2014, by delivering a copy to the respondents care of Ms. McDougall at the contact details provided in the cover letter to this Interim Decision.

Summary of Orders and Directions

15The Tribunal orders:

a. Subject to b., by February 13, 2014, Craiglee Nursing Home shall produce copies of any documents or information contained in the employee file of Elaine Budd at Craiglee Nursing Home concerning injuries sustained by Ms. Budd and any accommodation of such injuries and any payroll records in respect of the period January 1, 2005 to April 30, 2009 to Celia McDougall and Roy McDougall; and

b. If Craiglee Nursing Home objects to the production of the documents and information set out in (a), Craiglee shall provide complete submissions in support of its objection to the Tribunal with a copy to the parties in the Application by February 12, 2014. Should this occur the parties will have seven days to provide submissions in response.

16In addition, upon receipt of the materials in (a) above, the Tribunal directs:

• By February 20, 2014, the respondents shall deliver to the applicant (and file a Statement of Delivery) of the list of all documents and information received from Craiglee Nursing Home and a copy of each document and piece of information contained on the list, excluding any documents for which privilege is claimed;

• By February 20, 2014, the respondents shall also file with the Tribunal an amended response and disclosure of documents and witnesses (i.e. a list of documents the respondent intends to rely on, a copy of each document contained on the list, a witness list and a detailed statement summarizing each witness’ expected evidence) and provide to the applicant a copy of the same;

• By February 27, 2014, the applicant shall file with the Tribunal an amended reply (if relying on a further reply) and copies of any additional documents the applicant wishes to rely on and copies of any additional witness statements for witnesses the applicant intends to present and provide a copy of the same to the respondents.

17A copy of this Interim Decision will be delivered to the parties by email and regular mail (to the respondents care of the mailing address identified in the conference call) and to Craiglee Nursing Home to the attention of the administrator identified in the conference call at the email address set out in the respondents’ email of February 4, 2014.