Vigneault v. Aramark Canada Ltd., 2014 HRTO 877

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andre Vigneault

Applicant

-and-

Aramark Canada Ltd. and Diane Browne

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 16, 2014

Citation: 2014 HRTO 877

Indexed as: Vigneault v. Aramark Canada Ltd.

APPEARANCES

Andre Vigneault, Applicant

Delphine St. Jacques, Representative

Aramark Canada Ltd. and Diane Browne, Respondents

H.P. Rolph, Counsel

1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents have filed a joint Response denying the allegations. The hearing is scheduled for June 23, 24, and 25, 2014 in Toronto.

2A lengthy Case Management conference call was held on June 13 to address various production requests that the applicant had raised in a Request for Order During Proceedings (“RFOP”). During the call, there was some agreement between the parties about some of the applicant’s requests, which is set out below. Other issues require an order or determination from the Tribunal, which is also set out below. The Tribunal has anonymized the names of some of the individuals as their identities are not necessary to this Interim Decision and the parties can determine, from initials, who the individuals are.

3As explained during the call, the rulings in this Interim Decision are bottom line. Full reasons pertaining to the issues on which the Tribunal is to order will be set out in the event that a Decision on the merits is issued.

The late filing of some of the respondents’ witness statements

4The respondents are permitted to rely upon the witness statements that they filed, including the ones that were filed outside the disclosure dates. The late witness statements were filed more than four weeks before the hearing and there is little, if any, prejudice to the applicant by the late filing.

Tabs 5, 105, 123, 124, 125, 126, 127, and 130

5In their book of documents, the respondents produced documents, in the tabs set out above, in which part of the document was redacted. The respondents explained during the call that the redacted portions were emails which were forwarded to counsel, or emails forwarding the email to another individual within the respondent.

6For the tabs noted above, by Thursday, June 19, the parties agreed that the respondents would provide to the applicant the emails showing the person from whom the email was sent, the person to whom it was sent, and the date the email was sent. The message would remain redacted. The emails do not need to be filed with the Tribunal. The issue about solicitor-client privilege and/or litigation privilege can be addressed at the hearing to the extent that the redacted portions remain an issue.

Tabs 75 and 82

7Based upon an agreement by the parties, the Tribunal orders that the respondents forward to the applicant the redacted information for the first two columns of the charts contained at Tabs 75 and 82 by Thursday, June 19. This information does not need to be filed with the Tribunal. The Tribunal confirms the applicant’s representation that this information will remain confidential within the parameters of the hearing process.

8The Tribunal also reminds the applicant about his obligations under Rule 3.3 of the Tribunal’s Rules of Procedure which states, “Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal”.

Tabs 86, 87, 88, 89, 90 and 108

9The applicant confirmed that he is no longer seeking production of information from Tabs 86, 87, 88, 89, 90 and 108 of the respondents’ book of documents.

Matrix or evaluation system

10The applicant confirmed that he was not seeking production of the matrix or evaluation system used by the respondents, the respondents’ representation that none was used.

Documentation from Bryan Stewart and/or Diane Browne about lack of leadership in previous GM’s position

11I am not prepared to order, at this point, that the respondents are to produce documentation from Bryan Stewart and/or Diane Browne about past assessments made by them that point to operational issues at Quinte stemming from lack of leadership from S.J. I accept, at this point, given the respondents’ submissions that this request is a “fishing expedition” given the positions that Mr. Stewart and Ms. Browne held within the corporate respondent, and I do not see, at this point, the relevance of this documentation.

Documentation pertaining to S.J.’s deployment to Quinte and documentation pertaining to S.J.’s leaving Quinte

12The respondents submit that S.J. resigned and was not terminated. The timing of when the respondents received notification of this resignation is arguably relevant given the timing of the applicant’s termination and the respondents’ assertion that the applicant was terminated as a result of restructuring. Accordingly, I order the respondents to disclose S.J.’s notice of resignation.

Information about A.E.’s termination

13I do not order production about A.E.’s termination which created a vacancy at Monfort. I accept the respondents’ submissions that the applicant expressed interest in this position in May 2014, that this issue is not part of the Application or amended Application, and that if they have to respond to each position the applicant continues to be interested in, the case will never end. In this regard, I note the applicant’s acknowledgement that this issue was not part of his Application or amended Application, although he did express interest to the respondents and has filed documentation in relation to this interest.

Resume of D.P.

14The applicant seeks production of the resume of D.P. and any documentation that provides evidence of his redeployment to the position of Simcoe Country hospital consortium after he was declared surplus in 2012 as the applicant asserts that he was more qualified than D.P. The respondent objects to this production, submitting that it is not relevant.

15At this point in time, I do not see the relevance of the information pertaining to D.P. and accordingly do not order production of it. It may be that during the course of the hearing, this issue may become relevant and if so the parties may raise this issue again.

Without Prejudice Communication between the parties

16In its Interim Decision, 2014 HRTO 347, the Tribunal ruled that the applicant could not rely upon “without prejudice” communications with the respondents in relation to applying for a position in December 2013. Accordingly, I see no basis to depart from that ruling and the applicant cannot rely upon these “without prejudice” communications.

Proposed Witness – Debbi Furyes

17The witness statement filed by the respondents about Debbi Furyes is sufficiently detailed. A summary of her proposed evidence suggests that her evidence is based upon first-hand information with respect to the qualifications that the corporate respondent’s client, Quinte, was seeking in the general manager’s position. Her potential evidence is relevant to the proceedings and she will be permitted to testify at the hearing if the respondents elect to call her as a witness. The weight to be given to her evidence can be addressed by the parties during their final submissions.

Proposed Witness – Donna Bishop

18The witness statement filed by the respondents about Donna Bishop is also sufficiently detailed. A summary of her proposed evidence suggests that her evidence is based upon first-hand information in relation to the applicant working at l’Hôpital Monfort. Her potential evidence is relevant to the proceedings and she will be permitted to testify at the hearing if the respondents elect to call her as a witness. The weight to be given to her evidence can be addressed by the parties during their final submissions.

Mediation-adjudication

19As explained during the call, the Tribunal offers mediation-adjudication services to parties at the hearing. This is a voluntary process. The Tribunal’s mediation-adjudication agreement, which the parties are required to sign if they are agreeable to mediation, is found on the Tribunal’s website, www.hrto.ca, under the heading “Guides & Forms”, under the section “Other Forms”.

20If the parties are interested in spending some time on the first day of the hearing participating in mediation-adjudication discussions, they are directed to email the Tribunal, copying the other party/parties, by 2:00 p.m. on Friday, June 20.