Blasutti v. Vale Canada Limited, 2015 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jodi Blasutti

Applicant

-and-

Vale Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: July 29, 2015

Citation: 2015 HRTO 1010

Indexed as: Blasutti v. Vale Canada Limited

WRITTEN SUBMISSIONS

Jodi Blasutti, Applicant

Self-represented

Vale Canada Limited, Respondent

Kevin Inwood, Counsel

Introduction

1The applicant alleges discrimination with respect to employment because of age and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondent is a mining company with operations throughout the world. This Application concerns the hiring process for twenty full time underground miners to work at the Totten Mine, a new mine in Sudbury.

2The applicant alleges that she was denied the opportunity to progress through the hiring process because of her age and gender. She alleges that younger men with less mining experience and with family members employed by the respondent were given the opportunity for employment.

3This matter is proceeding to a hearing on September 1 and 2, 2015, in Sudbury.

4The applicant has filed two Requests for Orders During Proceedings ("RFOP") dated June 4, 2015 and July 2, 2015. The first RFOP sought production of information and documents from the respondent. Much of the information requested by the applicant has been provided by the respondent. The second RFOP was for information and documents that the respondent refused to provide in the first RFOP.

5This interim decision addresses the applicant's outstanding requests for the production of:

a. The names of all of the females currently working as underground production miners for the respondent in Sudbury;

b. The familial relationships of the twenty individuals hired by the respondent;

c. The provincial government modules for each of the individuals hired.

6The basic principle in determining a production request is whether the requested documents are "arguably relevant". The applicant has the burden of demonstrating that the documents sought are "arguably relevant" to the issues in dispute in the proceeding before the Tribunal.

7The issue in this case is whether the applicant's age and or gender were factors in the decision not to progress her through the hiring process for the underground miner positions in Sudbury.

Names of Female Underground Production Miners

8In response to the applicant's request for the percentage of hourly females working underground as production miners in Sudbury, the respondent provided the following data: 19 out of 1097 underground miners are women, representing 2% of underground miners. The applicant asserts that this information is different from the information that she has been able to obtain during her own investigation. In materials filed by the applicant, she asserts that there are 6 women working as production miners.

9In my view, there is not a great deal of statistical difference between 6 and 19 women working as underground miners. In either case, the percentage of women working in the mines is low. Because of this, the names of the women working as underground miners will have little relevance in this proceeding. It is for this reason that I am declining to order the production of the names of the female miners.

Family Relationships of the Individuals Hired for the Twenty Positions

10The respondent has provided the names of the individuals hired for the twenty underground miner positions. The applicant is requesting information concerning the familial relationships between the individuals hired and employees of the respondent. The applicant has given examples of three individuals who were hired who are allegedly related to employees of the respondent.

11The respondent objects to producing this information because it submits that it is not relevant because the applicant has not alleged discrimination on the basis of family status. The respondents submits further that nepotism-based hiring is lawful under section 24(1)(d) of the Code. Finally, the respondent states it does not maintain specific records of familial relationships between its employees.

12The applicant submits that she has identified family-status in her Application.

13In reviewing the Application, it is clear that the applicant has claimed discrimination on the basis of age and gender. She has not asserted that she was denied the opportunity to progress through the hiring process because of her family status.

14The applicant has asserted that she was qualified for the underground miner positions and that less qualified individuals were hired. One reason asserted by the applicant as to why these allegedly less qualified individuals were hired was because they were related to employees of the respondent. This information is arguably relevant to the applicant's assertion regarding the qualifications of the individuals hired.

15The respondent is directed to disclose whether the individuals hired are related to current or former employees of the respondent and if so, the employee's position with the respondent and the nature of their relationship with the individual hired. Although the respondent does not keep a record of this information, it should not be difficult to obtain this information for the twenty individuals hired.

Government Modules for the Individuals Hired

16The applicant has requested the government modules for the individuals hired. The respondent has disclosed information concerning modules that were missing for some of the individuals hired, but has not disclosed the provincial underground mining modules for the individuals hired.

17The applicant's case rests on her assertion that less qualified individuals, who were younger and male, were hired for the positions. The applicant is entitled to disclosure of all of the information concerning the hiring of the successful candidates. This would include the information in the hands of the hiring committee. If that information includes the provincial underground mining modules for the successful candidates, that information should be produced. The production should also include the successful candidates' resumes, job applications, modular training transcripts and training histories, pre-screens, behavioural technical interview guides and behavioural technical interview summaries. In other words, the respondent should produce all of the hiring information related to the twenty successful candidates.

order

18The respondent is required to produce the following by August 11, 2015:

a. The familial relationship between the individuals hired for the underground mining positions and the current or former employees of the respondent, the nature of the relationship and the position of the current or former employee;

b. All of the hiring information relating to the individuals hired including, but not limited to, the government modules if in the hands of the hiring committee and the resumes, job applications, modular training transcripts and training histories, pre-screens, behavioural technical interview guides and behavioural technical interview summaries for the successful candidates.