Neary v. 1710700 Ontario Inc. o/a Ristorante Avanti, 2014 HRTO 431

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Neary

Applicant

-and-

1710700 Ontario Inc. o/a Ristorante Avanti and Anthony Ferriolo

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: March 27, 2014 Citation: 2014 HRTO 431 Indexed as: Neary v. 1710700 Ontario Inc. o/a Ristorante Avanti

WRITTEN SUBMISSIONS

Melissa Neary, Applicant Shawn Weston, Representative

1710700 Ontario Inc. o/a Ristorante Avanti and Anthony Ferriolo, Respondents Claudio Martini, Counsel

Introduction

1The purpose of this Interim Decision is to deal with the applicant’s requests for production of documents and information from a non-party and the respondents.

BACKGROUND

2The organization respondent employed the applicant as a server in its restaurant. The individual respondent is a co-owner of the restaurant.

3On September 6, 2013, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected her to discrimination because of her sex and marital status, sexual harassment, sexual solicitations and advances, and reprisals with respect to employment. Among other things, she alleged that the individual respondent sent her text messages that were sexual in nature, including a photograph of his penis, and later made her delete the messages.

4On October 18, 2013, the respondents filed a Response, which denied the applicant’s allegations. The respondents stated that it was, in fact, the applicant who had acted in a sexually overt and inappropriate manner towards the individual respondent and patrons of the restaurant, and she is now trying to extort money from the respondents.

5On December 7, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that Bell Mobility, which is a non-party, produce part of her cell phone records. Neither the respondents nor Bell Mobility responded to the RFOP, although it appears that the applicant consulted with Bell Mobility’s legal department prior to filing her RFOP.

6On January 16, 2014, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was rescheduled for August 5, 6 and 7, 2014. The Notice also informed them that pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure, they were required to deliver to each other a list and copy of all arguably relevant documents in their possession by no later than February 6, 2014.

7On February 20, 2014, the applicant filed a further RFOP, which requested that the individual respondent produce part of his cell phone records. On March 5, 2014, the respondents filed a Response, which opposed the applicant’s request.

REQUEST FOR PRODUCTION FROM A NON-PARTY

8Pursuant to the Code and the Tribunal’s Rules, the Tribunal has the authority and power to order the production of documents, information or things from both parties and non-parties in a proceeding before it.

9Sections 40 and 41 of the Code provide that the Tribunal shall dispose of applications by adopting procedures and practices, including alternatives to traditional adjudicative or adversarial procedures, which offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications before it.

10Section 43(1) of the Code further provides that the Tribunal may make rules governing the practice and procedure before it, and s. 43(3)(f)(i) of the Code specifically provides that the Tribunal’s rules may authorize the Tribunal to require a party to a proceeding or another person to produce any document, information or thing and 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 Tribunal has made Rules in accordance with the above provisions of the Code. Specifically, Rule 1.7(p) provides that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may 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.

12In her RFOP, the applicant specifically requested the following orders:

1. Bell Mobility search its cellular records and, if available, produce to the applicant’s legal representative copies of any detailed billing and incoming/outgoing call detail records (“CDRs”), including telephone calls, text messages, picture messages, and data usage, in Bell’s custody, possession, and/or control relating to Bell Mobile Cell Phone No.: [REDACTED] of Melissa Neary for the months of March, April, May, June, July, and August 2013 within 60 days.

2. The applicant pay Bell Mobility $300.00 for its reasonable costs and expense to search for the aforementioned information.

13It is well-established that the basic principle in determining a production request is whether the requested documents or information are “arguably relevant” to the issues in dispute in the proceeding.

14In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal explained its approach at paras. 8-11:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

The Tribunal is also sensitive to privacy issues….

15In her submissions, the applicant stated the requested documents and information are arguably relevant to the issues in dispute in the proceeding because they can provide evidence to substantiate some or all of the allegations in her Application. She further stated that there is a dispute between the parties as to whether the individual respondent sent her text messages that were sexual in nature, including a photograph of his penis.

16The applicant’s request for production of documents and information from Bell Mobility is granted. I agree with her uncontradicted submissions that the requested documents and information are arguably relevant to the issues in dispute in the proceeding.

REQUEST FOR PRODUCTION FROM THE RESPONDENTS

17In her RFOP, the applicant stated that the respondents failed to fully comply with Rule 16.1 of the Tribunal’s Rules, and requested that they produce the following arguably relevant documents and information:

1. The “detailed usage” or call logs of the individual respondent’s cell phone number [REDACTED] for the month of March 2013, and, in particular, for March 30 and 31, 2013.

2. A copy of all texts or other written messages from the applicant to the individual respondent, which the respondents alleged were inappropriate.

18In her submissions, the applicant stated the requested documents and information are arguably relevant to the issues in dispute in the proceeding for basically the same reasons contained in her RFOP with respect to Bell Mobility.

19In their Response to the applicant’s RFOP, with respect to 1), the respondents stated that they do not possess the call logs for the individual respondent’s cell phone, and, in any case, such information would have not probative value because it will not provide the text of the information communicated. With respect to 2), the respondents stated that they have already produced all documentation with respect to this matter in their possession.

20With respect to 1), given that the requested documents and information may show when incoming and outgoing texts and calls occurred and whether a photograph was sent, I disagree with the respondents that they are not arguably relevant to the issues in dispute in the proceeding. I appreciate that the individual respondent may not currently possess the requested documents and information, but as a customer of a cell phone provider, he may be able to obtain such documents and information from his provider.

21Therefore, the Tribunal orders the individual respondent (a) to deliver, within seven days, a copy of this Interim Decision to his cell phone provider along with a request for “detailed usage” or call logs, including telephone calls, text messages, picture messages, and data usage, for cell phone number [REDACTED] for March 30 and 31, 2013, and (b) to provide disclosure of any arguably relevant documents and information that he receives from his provider to the applicant within seven days of receiving them.

22If the individual respondent’s cell phone provider notifies him that it requires a production order from the Tribunal, he shall file an RFOP with the Tribunal and serve it on the applicant and the cell phone provider within seven days of receiving notification from the provider.

23In light of the fact that the applicant is requesting that the individual respondent produce documents and information that he does not currently possess, if the individual respondent’s cell phone provider charges a fee for searching for, obtaining, and/or producing the requested documents and information, she shall be responsible for bearing the cost.

24With respect to 2), I will not make an order for production of any further documents because the respondents stated that they have already produced all documentation with respect to this matter in their possession.

ORDER

25The Tribunal makes the following orders:

1. Within 60 days of the date of this Interim Decision, Bell Mobility shall search its cellular records and, if available, produce to the applicant’s legal representative copies of any detailed billing and incoming/outgoing call detail records (“CDRs”), including telephone calls, text messages, picture messages, and data usage, in Bell’s custody, possession, and/or control relating to Bell Mobile Cell Phone No.: [REDACTED] of Melissa Neary for the months of March, April, May, June, July, and August 2013.

2. The applicant shall pay Bell Mobility $300.00 for its reasonable costs and expense to search for the aforementioned information.

3. Within seven days of the date of this Interim Decision, the individual respondent shall deliver a copy of this Interim Decision to his cell phone provider along with a request for “detailed usage” or call logs, including telephone calls, text messages, picture messages, and data usage, for cell phone number [REDACTED] for March 30 and 31, 2013.

4. Within seven days of receiving any arguably relevant documents and information from his cell phone provider, the individual respondent shall disclose them to the applicant.

5. If the individual respondent’s cell phone provider notifies him that it requires a production order from the Tribunal, he shall file an RFOP with the Tribunal and serve it on the applicant and the cell phone provider within seven days of receiving notification from the provider.

6. If the individual respondent’s cell phone provider charges a fee for searching for, obtaining, and/or producing the requested documents and information, the applicant shall be responsible for bearing the cost.

26I am not seized of this matter.