HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Debora Sault
Applicant
-and-
Ontario Native Women’s Association, Betty Kennedy,
Colleen Maloney and Lou-Anne Lepage
Respondents
INTERIM DECISION
Adjudicator: Kevin Cleghorn
Indexed as: Sault v. Ontario Native Women’s Association
WRITTEN SUBMISSIONS
) Debora Sault, Applicant ) Jamie McGinnis, Counsel ) ) Ontario Native Women’s Association, ) Robert Edwards, Counsel Betty Kennedy, Colleen Maloney ) and Lou-Anne Lepage, Respondents )
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in employment because of sex, sexual solicitation, association with these grounds and reprisal.
2By Interim Decision dated May 14, 2013, the Tribunal made an Order that the applicant could amend the Application to add a further act of reprisal discovered by the applicant after the Application had been filed.
3The Application proceeded to mediation on April 12, 2013 and did not resolve. This Interim Decision addresses a Request for an Order During Proceedings (“RFOP”). The matter is scheduled for a hearing on the merits on May 20, 21 and 22, 2014.
APPLICANT’S REQUEST FOR THIRD PARTY DISCLOSURE
4Rule 1.7 (p) of the Tribunal’s Rules of Procedure states:
1.7 In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may:
p) 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;
5The applicant is requesting production of documents from a third party. The order requested is:
“The Applicant is seeking an order for third party disclosure of all and any information related to the email: mentalhealth663@yahoo.com”.
6In essence, the applicant requests that an Order be made as against Yahoo! Inc. to disclose the individual who previously used email account mentalhealth663@yahoo.com. The basis for the request is that the user of that account (now deactivated) allegedly sent an email to the applicant’s employer on June 14, 2012 which stated as follows:
“I am a concerned member of the community, you hired a new employee in your mental health department her name is Debbie Sault, she has wreaked havoc at the ontario native womens association with staff and board. she Is very disturbed and will do the same there once you ask her to do work. she gossips and will draw other staff in. I’m sure if you call onwa for infomration (sic) you will get the information needed. she is bad mouthing them at committees and her old work dilico. i would keep a close eye on her during probation.”
7The applicant submits that the email may represent a further attempt at reprisal against her for reporting sexual harassment in the corporate respondent’s workplace. She is unaware of whether the email actually emanates from an employee, representative or person otherwise associated with any of the respondents or is actually from any of the respondents.
8The respondents deny any knowledge of, nor any involvement in, creation and dissemination of the June 14, 2012 email. They neither consent to, nor oppose, the Order being sought by the applicant.
RULE 19
9Rule 19 of the Tribunal’s Rules of Procedure states, in part:
19.1 A party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of the hearing or by written request.
19.2 Where a request is made in writing, it must be made in Form 10, Request for Order during Proceedings (“Request for Order”) and must be delivered to all parties and any person or organization who may have an interest in the request and filed with the Tribunal.
19.3 A request for an order that a non-party provide a report, statement or oral or affidavit evidence in accordance with Rule 1.7(r), must be in writing and must be delivered to the non-party in addition to the other parties to the proceeding.
10There may be a host of legitimate reasons why a third party may decline disclosure. These include litigation privilege, solicitor-client privilege or basic right to privacy interests, to name just some See for example, Singh v. University of Toronto, 2010 HRTO 1873, Santonato v. United Food and Commercial Workers, 2009 HRTO 1858 and Miraglia v. University of Waterloo, 2009 HRTO 1810.
11It is explicit in Rule 19 that the third party from whom disclosure is sought shall be served with that request. As a matter of procedural fairness, it is necessary for that step to be complied with to permit the third party to make the arguments against disclosure, if so inclined. There is no evidence before me to suggest that the applicant has complied with the mandatory requirement of Rule 19 to inform the third party of the RFOP in this instance.
DECISION
12For all the foregoing reasons, the request for production of documents from the third party Yahoo! Inc. is denied, without prejudice to the right of the applicant to revive her request upon compliance with the Rules in all respects.
Dated at Toronto, this 2nd day of May, 2014.
“Signed by”
Kevin Cleghorn
Member