Ifrah v. National Income Protection Plan Inc., 2014 HRTO 705

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hana Ifrah Applicant

-and-

National Income Protection Plan Inc. Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: May 16, 2014

Citation: 2014 HRTO 705

Indexed as: Ifrah v. National Income Protection Plan Inc.

WRITTEN SUBMISSIONS

Hana Ifrah, Applicant Self-represented

National Income Protection Plan Inc., Respondent Vilija Ycas, Representative

1This is an Application filed on April 22, 2013 under section 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 (gender). Specifically, the applicant alleges that in 2011, the respondent agreed to pay her a retention bonus when the company that she worked for, which was owned by the respondent, was sold the respondent. She alleges that the respondent failed to pay her the retention bonus, which became due while she was on pregnancy leave. The respondent filed a Response stating that she was not paid the retention bonus because she did not have the active service that was required when the payment became due.

2The file is scheduled for rescheduled hearing on August 11, 2014.

3Both parties have filed Requests for Order During Proceedings (“RFOP”), which are the subject of this Interim Decision.

The Applicant’s Request for Order During Proceedings

The applicant’s position

4In her RFOP, the applicant requests that the respondent provide or disclose any agreements of purchase and sale and “all other documents” relating to the merger of Oncidium Health Group and ATF with Aim Health Group as well as the respondent’s financial statements and bank statements from 2010 to the present. She submits that these are arguably relevant as there is a question of whether the respondent has assets in this proceeding as a result of the merger.

5The applicant also requests that Clifford Rhee be added as a personal respondent. In this regard, she submits that he is the owner of the respondent, who decided not to pay her the retention bonus, and that the respondent may no longer have any assets as a result of the merger with AIM Health Group. She submits that there is no prejudice in adding him as a respondent at this point as he has had notice of the Application since it was filed.

The Respondent’s Position

6The respondent filed a Response to the RFOP. It objects to the applicant’s production request, states that there is no nexus between the allegations and the requested documents, and calls the request a fishing expedition. It submits that the request is overly broad, the documents are highly confidential and sensitive and would violate the confidentiality rights of parties who are not subject to the proceeding.

7With respect to adding Mr. Rhee as a personal respondent, the respondent submits that this is not necessary. He was, at all material times, acting in the course of his role as an officer of the respondent. Furthermore, it submits that there is no evidence before the Tribunal that the respondent is or will be unable to satisfy any award made by the Tribunal.

Analysis

8The applicant’s RFOP is denied.

9I agree with the respondent that the applicant’s request for the financial and banking records for the respondent for the period 2010 onwards is overly broad and do not order production of them. There is no information before the Tribunal, at this point, that the respondent is impecunious or that it does not have the ability to pay in the event that the Application is upheld.

10Furthermore, I do not find, based upon the allegations in the Application and the Response, that the documentation pertaining to the other companies to be arguably relevant to the issues before the Tribunal. This conclusion could be different if, for example, the respondent stated in its Response that it was not required to pay the retention bonus because of the agreement it entered into with another company. Instead, the respondent submits that it was not required to pay the retention bonus because the applicant was not an active employee.

11Mr. Rhee is also not added as a personal respondent. While the parties did not provide, and the Tribunal did not seek, submissions about whether or not the applicant’s request to add Mr. Rhee is untimely and outside of the mandatory one year limitation period under section 34(1) of the Code, Mr. Rhee is not being added as a personal respondent as there is nothing before the Tribunal to indicate that the allegations against Mr. Rhee could not be addressed by the respondent.

The Respondent’s Request For Order During Proceedings

The Respondent’s Position

12In its RFOP, the respondent requests that the applicant produce her payslip from Oncidium Health Group/AIM reflecting her pay up to and including June 30, 2012. It submits that this information supports its position that the applicant was not an active employee at the time that the retention bonus became payable.

The Applicant’s Position

13The applicant did not file a Response to the RFOP and the time for doing so has elapsed.

Analysis

14The 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. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8.

15A key issue at the hearing will be whether the applicant was required to be an “active” employee or not at the time the retention bonus became due. Accordingly, the applicant’s pay information from June 2012, including June 30, 2012, is arguably relevant to the issues before the Tribunal. The applicant is directed to provide this information to the respondent within 10 days of the date of this Interim Decision.

Order

16The Tribunal orders the following:

1. The applicant’s RFOP is denied;

2. The respondent’s RFOP is granted. The applicant is directed to provide her pay information from June 2012, including any payslips for the period June 30, 2012, to the respondent within 10 days of the date of this Interim Decision.

17I am not seized with this matter.