Wales v. Toyota Motor Manufacturing Canada Inc., 2014 HRTO 30

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicole Wales

Applicant

-and-

Toyota Motor Manufacturing Canada Inc., Brian Ballantyne and Mark Geene

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: January 8, 2014

Citation: 2014 HRTO 30

Indexed as: Wales v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Nicole Wales, Applicant

Self-represented

Toyota Motor Manufacturing Canada Inc. Brian Ballantyne and Mark Geene, Respondents

Ted Kovacs and Melissa Roth, 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”).

2This Interim Decision is being issued in response to two Requests for Order During Proceedings filed by the applicant, the first on June 17, 2013 (“the first RFOP”) and the second on November 1, 2013 (“the second RFOP”). The respondents have provided written submissions with respect to both RFOPs.

3The first RFOP requests an Order to amend her Application as follows:

1. to remove the amount requested as a monetary remedy and instead to include a request that any monetary remedy awarded in the discretion of the Tribunal be donated to Egale Canada Human Rights Trust;
2. to include an additional request for a non-monetary remedy, that the corporate respondent provide a letter of assurance of future compliance with the Code; and
3. to request orders for future compliance including having the corporate respondent retain a human rights expert to review its human rights policies and to train all of its employees with the rank of manager or higher as well as those in human resources on how to respond to human rights complaints; publish an extract of the decision in the corporate newsletter, Takt Times; post Human Rights Code cards in the workplace; provide a copy of the decision to all current staff and administrators who have authority to conduct investigations under its human rights policy and procedures; provide to all employees who are filing a Human Rights complaint access to a representative that is impartial, not in management and not working in Human Resources; provide to all employees bringing forward a Human Rights complaint with access to an independent investigator who does not have direct authority over the employee or the power to influence the career progress of the employee; and the respondent’s Alternative Dispute Resolution procedure to be conducted by a neutral, third party representative when Human Rights complaints are brought forward, and for that representative to be extensively trained in the Code.

4The second RFOP requests an Order:

1. to permit the applicant to amend her Application to include the narrative attached to the second RFOP;
2. for production of the following documents: a. Notes from Agnes Leet made during meeting with the applicant; b. All e-mails from Mark Geene regarding the applicant; c. Notes from Brian Ballantyne from “12 month investigation August 2, 2013”; d. The applicant’s medical file from January, 2013 to the present; e. Video of two jobs, namely the Mohican and the ED3.

the law regarding amendments to the Application

5In considering requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent(s). See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

6With respect to the timing of the requests alone, the hearing is scheduled for March 31 and April 1, 2013 and I do not find it prejudicial to allow amendments to the Application at this stage.

First RFOP – To amend Remedies

7I am satisfied that the Tribunal has the power to make an award that includes a donation to charity, and as such, I allow the amendment as requested by the applicant.

8I also allow the amendment to include a claim for a non-monetary remedy of a letter assuring future compliance with the Code. The Tribunal has the power to make orders with respect to future practices, as set out in paragraph 45.2(2)(a) and can make such an order even in the absence of a request for same. As such, the amendment is allowed, although given its breadth, there is some doubt the Tribunal would make such an order.

9With respect to the requests made to ensure future compliance with the Code, there is no prejudice to the respondent in allowing the amendments and the request to amend is timely. The request to amend to include the additional remedies set out in paragraph 3, above, is allowed.

second rfop - Amend Application to Include Narrative

10The respondents have addressed the applicant’s request to amend her Application in three parts, as follows, and I will address each of these:

1. Allegations Pertaining to Time Period Up to Date of Filing Application
2. New Allegations Since Application filed; and
3. Inclusion of Narrative and Documents Pertaining to Settled File No. 2010-06896-I.

Allegations Pertaining to Time Period Up to Date of Filing Application

11The applicant’s narrative attached to her second RFOP comprises 12 typed pages, the first 1½ pages of which deal with allegations relating to the time period up to the filing of the Application. In the first paragraph, the allegations with respect to the interaction with a co-worker on the line disclose no link to a Code ground. The Tribunal does not have a general power to inquire into claims of workplace unfairness that do not stem from the grounds listed in the Code. This amendment is not permitted.

12The applicant alleges in paragraphs 2 and 4 that she completed wellness checks for neck pain on April 2, 2013 and on April 9, 2013 for swelling in the legs and knees. The information about neck pain and swelling in the legs and knees was addressed by the respondent in its Response and by the applicant in her Reply. An amendment to the Application is not required.

New Allegations

13The respondents do not object to the inclusion of events in the narrative relating to the time period after the Application was filed, but asks to be allowed 45 days to file a Response.

14To the extent that the new allegations relate to the allegations in the original Application and simply document ongoing issues, the amendments are allowed. The amendments allowed include the information with respect to progressive discipline, provision of duties within the applicant’s restrictions as set out in the Application and Reply, and additional facts with respect to the applicant’s vacation request.

15The last 2½ pages is in the nature of submissions and the Tribunal does not allow an amendment to the Application to include these.

16The respondents shall be permitted to file an amended Response, but since the allegations are not new but continue from the original allegations, the respondents shall file their amended Response within 14 days of the date of this Interim Decision.

Inclusion of Narrative and Documentation from Settled File

17The respondents stated that the applicant included in her RFOP 19 documents relating to a settled 2010 HRTO file. These documents were not attached to the Tribunal’s copy of the RFOP, although it appears they are referred to in the applicant’s Form 23 in which she stated that she was delivering further documents to the respondents pursuant to Rule 16.1.

18The applicant’s use of information from a confidentially settled file will be limited. It appears that the Minutes of Settlement from that file state that the applicant may raise facts from that Application that relate to any reprisal allegation. The Tribunal declines to order at this point what information the applicant will be entitled to use from the prior Application, and the parties may address this in the context of the hearing as it arises.

the law regarding production of documents

19As stated by the Tribunal in Le Blanc v. Toronto Transit Commission, 2011 HRTO 1625, at para. 6:

At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. [Emphasis added.]

2nd RFOP Regarding Production of Documents

Notes from Agnes Leet

20The applicant provided no details with respect to what notes she was requesting, nor has she provided any details to establish that these notes would prove or disprove a fact in dispute. In any event, the respondents state they have no such notes.

Mark Geene’s e-mails

21According to the respondents, one of Mr. Geene’s e-mails was sent to the applicant’s supervisor, Brian Ballantyne, has been produced. Other than the broad request for all of Mr. Geene’s e-mails about her, the applicant’s specific request was for this e-mail. The applicant did not establish that the provision of all of Mr. Geene’s e-mails would prove or disprove any of the facts in issue.

Brian Ballantyne’s Notes from 12 Month Investigation

22The applicant again has provided no details with respect to what document(s) she is requesting. In any event, the respondents have advised that Mr. Ballantyne has no notes from his discussion with the applicant.

Medical File and Jobs Video

23The respondent has agreed to provide these to the applicant.

24In all the circumstances the second RFOP seeking production of documents is dismissed.

summary of order

25The Tribunal orders:

1. The Application is amended to include: a. a request that any monetary remedy awarded in the discretion of the Tribunal be donated to Egale Canada Human Rights Trust; b. the additional remedies for future compliance; and c. ongoing allegations since the date of the filing of the Application that relate to the allegations in the original Application, including those with respect to progressive discipline, provision of duties within the applicant’s restrictions as set out in the Application and Reply and the applicant’s vacation request;
2. The respondents may within 14 days of this Interim Decision deliver to the applicant and file with the Tribunal their amended Response.
3. The applicant may within 7 days of her receipt of the amended Response deliver to the respondents and file with the Tribunal an amended Reply.
4. The applicant’s requests for production are dismissed.

26Any disclosure of information from the applicant’s prior HRTO file will be determined at the hearing.