Hassall v. Oatley, Vigmond Personal Injury Lawyers LLP, 2014 HRTO 452

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Hassall

Applicant

-and-

Oatley, Vigmond Personal Injury Lawyers LLP, Meaghan Martin, Lisa Wade and Pamela Harris

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: April 1, 2014 Citation: 2014 HRTO 452 Indexed as: Hassall v. Oatley, Vigmond Personal Injury Lawyers LLP

WRITTEN SUBMISSIONS

Paula Hassall, Applicant Self-represented

Oatley, Vigmond Personal Injury Lawyers LLP, Meaghan Martin, Lisa Wade and Pamela Harris, Respondents Jason Botelho, Counsel

Introduction

1This is an Application dated April 1, 2013 and 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 sex, sexual harassment and family status. The hearing in this matter is scheduled to proceed in Toronto on May 5 and 6, 2014.

2The purpose of this Interim Decision is to address three Requests for Orders filed by the parties: (1) the applicant's Request dated August 22, 2013 seeking to amend the remedies sought in her Application; (2) the respondent's Request dated December 11, 2013 seeking production of documents; and (3) the applicant's Request dated January 6, 2014 seeking production of documents.

Applicant's Request to Amend

3The applicant has requested leave to amend her Application to seek additional compensation from what originally was claimed. The respondents did not file any response to this request.

4These types of requests are routinely granted by this Tribunal, and this case is no exception. The applicant's request to amend her Application to claim the amounts set out in her Request for Order dated December 11, 2013 is hereby granted.

Respondent's Request for Disclosure

5The respondents have requested disclosure of all medical documentation and any other documents on which the applicant relies in support of her Application. The respondents note that, pursuant to the Tribunal's Rules, the applicant was to have made disclosure of all arguably relevant documents in her possession by November 20, 2013, but did not do so.

6While the applicant sent an e-mail to the Tribunal on January 6, 2014 stating that a Response (Form 11) to this request was attached, no such document was attached to the e-mail as received by the Tribunal.

7Pursuant to Rule 16.1, all parties have an obligation to disclose to each other a list of all arguably relevant documents in their possession and a copy of each document contained on the list within 21 days of the Confirmation of Hearing. While the parties are not required to file documents with the Tribunal at this time, they are required to file a Statement of Delivery confirming that they have complied with their disclosure obligation.

8The Notice of Hearing was sent to the parties by letter dated October 30, 2013 and all parties were reminded of the obligation to make disclosure under the Rules, and advised that the deadline for making disclosure was November 20, 2013. The Tribunal has not received any Statement of Delivery from the applicant confirming that she has done so.

9Accordingly, the applicant is hereby ordered to make disclosure to the respondents of all arguably relevant documents in her possession within seven calendar days of the date of this Interim Decision. Based upon the issues raised in the Application, Response and Reply, arguably relevant documents in the applicant's possession would include:

a. any and all documentation in the applicant's possession, including e-mails, text messages or other documents, pertaining to the various work issues raised in the proceeding;

b. any handwritten or computer notes made by the applicant regarding the incidents at issue;

c. any documents relating to the "medical office administrator placement" at the respondent law firm and the requirement to repay an OSAP loan;

d. any documents pertaining to the applicant's efforts to mitigate her damages by seeking alternate employment, including job search records, letters of application and any responses, as well as any documents relating to any income earned by the applicant up to and including September 6, 2013; and

e. any other documents that are potentially relevant to the matters at issue, whether or not the applicant intends to rely upon them at the hearing.

10The respondents specifically have requested disclosure of medical documentation. It is not clear to me how such documentation is relevant to the matters at issue in this proceeding. While the applicant has claimed compensation for "mental stress", among other things, the Tribunal's actual power to award non-pecuniary compensation is framed in s. 45.2(1).1 as "compensation for injury to dignity, feelings and self-respect". Medical documentation is not required in order for the Tribunal to make an award of such compensation.

11However, if the applicant intends to rely at the hearing upon any medical documentation in support of her claim for compensation for injury to dignity, feelings and self-respect, then any such documentation is arguably relevant to a matter at issue in this proceeding, and must be disclosed to the respondents.

Applicant's Request for Disclosure

12By Request dated January 6, 2014, the applicant seeks disclosure of the following documents from the respondents:

a. All e-mails exchanged between Meaghan Martin and herself, Pamela Harris and herself, Lisa Wade and herself and Amanda Barr and herself from December 3, 2012 to January 22, 2013;

b. In particular, an e-mail from Meaghan Martin to herself regarding not attending and preparing for team meetings;

c. A calendar with all team meetings she attended from December 3, 2012 to January 21, 2013;

d. All charts that she prepared regarding two specific client files;

e. Witness statements and telephone statements that she prepared and that were satisfactory to Lisa Wade; and

f. A performance review from Lisa Wade provided to Pamela Harris regarding the applicant's three week training.

13The respondents object to the applicant's disclosure request, on the basis that the applicant has made a blanket request for all e-mail correspondence without providing any detailed explanation as to the relevance of the request. The respondents also object on the basis that the applicant is seeking the production of confidential client files which have no relevance to the proceeding.

14With regard to the applicant's disclosure request identified as item (a) above, it does seem to me that this request is over-broad. However, I am aware that the parties have put in issue in this proceeding the work direction and assignments that were given to the applicant during the course of the time that she worked for the respondent law firm, the quality of the applicant's work and whether she was meeting expectations. In my view, any e-mail correspondence touching on any of these matters would be arguably relevant to the matters at issue. Accordingly, I am ordering the respondent to review the e-mail correspondence from or to the applicant for the limited period of her employment, and to disclose all e-mails that relate to the aforementioned matters.

15With regard to item (b), if there is an e-mail from Ms. Martin to the applicant as described, then any such e-mail would be arguably relevant and must be disclosed.

16With regard to item (c), I am aware that an issue has been raised before this Tribunal regarding the applicant's attendance at team meetings. Accordingly, this item is arguably relevant and must be disclosed.

17With regard to items (d) and (e), I am cognizant that these disclosure requests pertain to confidential client matters. However, given the nature of the matters at issue before me, and particularly as they relate to criticisms of the applicant's work pertaining to the preparation of charts and witness statements, it seems to me that the documents requested are arguably relevant. In order to assess the credibility of the respondents' criticisms, to afford the applicant a fair opportunity to challenge such criticisms, and to enable the Tribunal to make an assessment of the parties' evidence on this point, these documents need to be disclosed. In order to protect client confidentiality to the extent possible, client names can be redacted from these documents. It is doubtful that the Tribunal would need to make reference to any confidential client matters in order to make its decision in this matter, as the issues appear to relate to the quality of the work as opposed to the specific content of the work product. If necessary, the respondents can seek a sealing order with regard to any specific documentation to protect sensitive client information, which can be requested at the hearing at such time as any such documents are tendered into evidence. All parties are reminded that, pursuant to Rule 3.3, any documents disclosed in a proceeding before this Tribunal are not to be used for any purpose other than in the Tribunal proceeding.

18With regard to item (f), clearly any such performance evaluation would be arguably relevant and must be disclosed.

Other matters

19I am aware from the correspondence on file before me that an issue has arisen between the parties regarding documents which have been disclosed electronically. Pursuant to Rule 1.21(e), documents may only be delivered electronically if the other party consents. In the instant case, where issues appear to have arisen regarding the ability to access electronic documents, it seems to me that hard-copy disclosure is the preferable course. No charge should be issued by either party for making hard-copy disclosure.

20Finally, I am aware that the applicant intends to take (or may have taken) a polygraph test. Typically such tests are not admissible as evidence of truthfulness in a legal proceeding. If such a test has been taken by the applicant with regard to any of the matters at issue in this proceeding, then the results of the test should be disclosed to the respondents. However, at the hearing, the Tribunal will need to hear submissions and make a ruling as to whether or not the results of any such test should be admitted into evidence.

ORDER

21For all of the foregoing reasons, the Tribunal hereby makes the following order:

a. The applicant's request to amend her Application to claim the amounts set out in her Request for Order dated December 11, 2013 is hereby granted;

b. Within seven (7) calendar days of the date of this Interim Decision, the applicant shall disclose to the respondents a list of all arguably relevant documents in her possession and a copy of each document contained on the list, and more particularly any documents identified in paras. 9 and 11 above; and

c. Within seven (7) calendar days of the date of this Interim Decision, the respondents shall disclose to the applicant a copy of all documents identified in para. 12 above, subject to the following restrictions:

i. With regard to item (a), the respondents shall disclose all e-mails pertaining to the work direction and assignments that were given to the applicant during the course of the time that she worked for the respondent law firm, the quality of the applicant's work and whether she was meeting expectations; and

ii. With regard to items (d) and (e), client names may be redacted from these documents.

22I am aware that the parties were granted an extension to April 7, 2014 to file the documents they intend to rely upon at the hearing and their witness statements. Given the timing of the disclosure ordered in this Interim Decision, that deadline is further extended to April 14, 2014 so that any material disclosed pursuant to this Interim Decision may be included.