Pooneh Piri v. Nestle Waters Canada, 2014 HRTO 435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pooneh Piri

Applicant

-and-

Nestle Waters Canada

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: March 27, 2014

Citation: 2014 HRTO 435

Indexed as: Piri v. Nestle Waters Canada

WRITTEN SUBMISSIONS

Pooneh Piri, Applicant

Self-represented

Nestle Waters Canada, Respondent

Andrea York, Counsel

Introduction

1The purpose of this Interim Decision is to deal with the parties’ requests for production of documents and things.

BACKGROUND

2On November 30, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against her with respect to employment because of her sex. Specifically, she alleged that the respondent terminated her employment because she was pregnant.

3On January 25, 2013, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that it terminated the applicant for a non-discriminatory reason, namely, her poor work performance and conduct.

4On July 22, 2013, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was scheduled for February 13 and 14, 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 August 12, 2013. On October 9, 2013, the Tribunal issued a Notice of Rescheduled Hearing, which notified them that the hearing was rescheduled for June 19 and 20, 2014.

5On December 17, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the respondent produce certain documents and things. On December 19, 2013, the respondent filed a Response to the applicant’s RFOP, which opposed her production request, and it filed its own RFOP, which requested that the applicant produce certain unredacted documents. The applicant did not file a Response to the respondent’s RFOP, and the time for doing so has now passed.

ANALYSIS

Applicant’s Request for Production

6Rule 1.7(p) of the Tribunal’s Rules 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.

7It 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.

8In 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….

9In her RFOP, the applicant requested production of the following documents and things:

1. All emails exchanged between her and the respondent’s Quality Assurance (“QA”) team members, QA Manager, Production Planner, Supervisors (Resources), Managers, and Corporate Managers.

2. All Instant Messenger (“IM”) messages exchanged between her and the respondent’s QA Manager, Human Resources Manager, Warehouse Resource, Plant Manager, Production/Technical Manager, NCE Manager, and Corporate Manager.

3. All Black Berry Messenger (“BBM”) messages exchanged betweeen her and the Managers and the Resources.

4. All the camera surveillance recordings.

5. A copy of her mid-year review.

6. Her notebooks.

10In her submissions, the applicant stated the requested documents and things are arguably relevant to the issues in dispute in the proceeding for the following reasons:

1. The emails contain positive feedback from the respondent’s managers, and support every item mentioned in her Application.

2. The IM messages show conversations between her and the respondent’s employees which support items in her Application.

3. The BBM messages show her hard work, and the positive feedback that she received from her managers.

4. The camera surveillance recordings show her hours of work. They also show how hard she worked.

5. The mid-year review confirms her good performance when her manager evaluated her.

6. Her notebooks contain important information regarding this case.

11In its Response to the applicant’s RFOP, the respondent stated that all “relevant” documents in the respondent’s possession have already been disclosed to the applicant.

12In my view, the applicant has not demonstrated that some of her requested documents and things are arguably relevant to the issues in dispute in the proceeding. Specifically, her submissions seeking production of emails and IM messages that support items in her Application, BBM messages that show her hard work, camera surveillance recordings that show her hours of work and how hard she worked, and notebooks that contain important information regarding this case, are too vague and broad.

13However, I accept that her submission that emails and BBM messages that contain positive feedback from the respondent’s managers, and her mid-year review about her work performance are arguably relevant to the issues in dispute in the proceeding.

14I have two concerns about the respondent’s Response to the applicant’s RFOP. First, the respondent stated that all “relevant” documents in the respondent’s possession have already been disclosed to the applicant. As mentioned in Lampi, above, the threshold for production and disclosure of documents before the Tribunal is “arguable relevance”, which is a lower bar than “relevance”. Second, the respondent did not specifically indicate if it searched for the emails, BBM messages, and mid-year review, whether or not it found any of these documents, and, if it did find any of these documents, why it did not disclose them to the applicant.

15In the circumstances, the Tribunal orders the respondent to search for any emails, BBM messages, and mid-year review that contain feedback from the respondent’s managers to the applicant about her work performance, and if it finds any such documents that are “arguably relevant” to the issue of work performance, to disclose them to the applicant.

Respondent’s Request for Production

16In its RFOP, the respondent requested production of the following documents:

1. Unredacted documents relating to the applicant’s mitigation efforts and successes.

2. Unredacted documents in support of the applicant’s allegation that no one would hire her due to her pregnancy.

17The applicant did not file a Response to the RFOP, but based on correspondence between the respondent’s counsel and the applicant that was attached to the RFOP, it appears that the applicant disclosed the above documents to the respondent, but redacted the names of the employers to whom she applied for jobs and the text of some of the written communications between her and the prospective employers, on the basis that, in her opinion, she cannot disclose such information for privacy reasons.

18In her Application, the applicant claimed monetary compensation for lost income post-termination of employment and alleged that she cannot find another job because employers will not hire a visibly pregnant woman. The applicant is under a duty to mitigate her losses by making reasonable efforts to obtain suitable employment, and is only entitled to be compensated for those losses that could not have been avoided. The respondent, however, has the onus of proving the applicant’s failure to mitigate. See Heintz v. Christian Horizons, 2008 HRTO 22 at para. 265.

19Given the above, in my view, the requested documents are arguably relevant to the issues in dispute in the proceeding, and the applicant’s must disclose unredacted copies of them to the respondent. As mentioned in Lampi, above, the Tribunal is sensitive to privacy issues, but the applicant did not file a Response to the RFOP and explain what her specific concerns are.

ORDER

20The Tribunal makes the following orders:

1. Within 14 days of the date of this Interim Decision, the respondent shall search for any emails, BBM messages, and mid-year review that contain feedback from the respondent’s managers to the applicant about her work performance, and if it finds any such documents that are “arguably relevant” to the issue of work performance, it shall disclose them to the applicant.

2. Within 14 days of this Interim Decision, the applicant shall disclose to the respondent unredacted documents relating to her mitigation efforts and successes, and unredacted documents in support of her allegation that no one would hire her due to her pregnancy.

21I am not seized of this matter.