Lesperance v. Caressant Care Nursing and Retirement Homes Limited, 2014 HRTO 626

Human Rights Tribunal of Ontario

B E T W E E N:

Debra Lesperance Applicant

-and-

Caressant Care Nursing and Retirement Homes Limited Respondent

INTERIM DECISION

Adjudicator: Judith A Hinchman Date: May 2, 2014 Citation: 2014 HRTO 626 Indexed as: Lesperance v. Caressant Care Nursing and Retirement Homes Limited

WRITTEN SUBMISSIONS

Debra Lesperance, Applicant Richard Miller, Counsel

Caressant Care Nursing and Retirement Homes Limited, Respondent Thomas A. Stefanik, Counsel

Introduction

1This is an Application 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 disability.

2The Application was filed against two respondents: Caressant Care Nursing and Retirement Homes Limited ("Caressant Care"), and Service Employees International Union, Local 1 Canada ("SEIU").

3By Interim Decision dated December 10, 2013 (2013 HRTO 2043), the Tribunal, as a result of Minutes of Settlement being entered into by the parties that settled the issues of liability, ordered that the Application continue to hearing with respect to damages.

4Subsequently the applicant advised the Tribunal and respondent Caressant Care that she had settled the Application as between her and the respondent SEIU.

5A two-day hearing is scheduled for June 3 and 4, 2014.

6Caressant Care is seeking an Order requesting production of a copy of "the settlement or Minutes of Settlement or Memorandum of Agreement between the applicant and SEIU." Caressant Care has asked that the matter be decided in writing.

7The applicant opposes this request and has also asked that the matter be heard by way of teleconference hearing. SEIU was given notice of the remaining respondent's request and has not filed any submissions.

8Having reviewed the parties' submissions I am not of the view that a teleconference hearing would be helpful. I therefore exercise my discretion pursuant to the Tribunal's Rules of Procedure, Rule 19.7 to determine this matter based on the written submissions.

9Caressant Care submits that the allegations for which the applicant seeks damages are based on her claim that Caressant Care and SEIU negotiated a collective agreement that included a provision that both original respondents have conceded was discriminatory under the Code. Therefore any impact flowing from that negotiated provision might lead to damages that would be appropriate against both Caressant Care and SEIU. The respondent argues that it would be appropriate to take into account any settlement figures agreed to by SEIU in their settlement with the applicant.

10The applicant opposes production on the basis of relevance and that the respondent has not established an exception to settlement privilege. In the alternative, the applicant suggests an "O'Connor" approach be taken. The applicant submits that following this approach the settlement document could be produced to me and if I then find it arguably relevant I would order it produced to the respondent.

11The O'Connor procedure to determine whether production should be ordered is a common law procedure which applies in both criminal and civil proceedings, and derives from R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, which dealt with production requests for documents held by third parties, although the Tribunal has adopted this practice in a situation when the sought documents were not third party documents. Washington v. Toronto Police Services Board, 2009 HRTO 217.

12In King v. Toronto Police Services Board, 2009 HRTO 644, the Tribunal expressed the following view:

...the use of an O'Connor-type procedure is an extraordinary departure from the ordinary principles that apply to production and disclosure in a human rights proceeding, and can only be justified in the most exceptional circumstances.

13In King, the Tribunal observed that to apply such a procedure depends on the nature of the privacy interests at stake, suggesting for example that exceptional circumstances might include a request for sensitive medical records. In my view no compelling interests are at stake here, where the remaining respondent seeks merely to know what settlement figures have been agreed to in order to settle the Applicant's allegations in the Application against one respondent because of a provision in the collective agreement negotiated by both original respondents and for which both agree to liability.

14I decline to apply the O'Connor-type approach.

15With respect to the disclosure request, as the Tribunal explained in Gungor v. Canadian Auto Workers Local 88, 2009 HRTO 1226, the privilege that generally attaches to settlement documents is important, however, "an exception exists where the relevance of the documents, apart from demonstrating an admission against interest or weakness of one party's claim, can be established." In Gungor, the Tribunal also noted that a document disclosure order of arguably relevant documents is not a determination that those documents will be admitted at the hearing. I agree with that principle.

16In my view given the allegations in the Application, any settlement figures agreed to by SEIU are arguably relevant to, and may be appropriate to take into account on, the question of damages that may be appropriate to award to the applicant from Caressant Care on the allegations for which the original respondents have both agreed they are each liable.

ORDER

17The applicant is ordered to provide the requested settlement document to the respondent Caressant Care and to file that document with the Tribunal within ten days of the date of this Interim Decision.