S.R.S. v. The Centurion Group Ltd., 2015 HRTO 1453

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.R.S. as represented by her Litigation Guardian P.S.

Applicant

-and-

The Centurion Group Ltd. o/a Century Childcare

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: October 29, 2015 Citation: 2015 HRTO 1453 Indexed as: S.R.S. v. The Centurion Group Ltd.

WRITTEN SUBMISSIONS

S.R.S, Applicant

P.S., Litigation Guardian

The Centurion Group Ltd. o/a Century Childcare, Respondent

Aaron MacKenzie, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.

2On October 19, 2015, the applicant filed a Request for an Order During Proceedings seeking disclosure of documents from the respondent (“the Request”). The applicant worked for the respondent as an Early Childhood Educator (“ECE”). Amongst her complaints in the Application is that the respondent distributed a wage subsidy provided by the Region of Halton inequitably and used some of these funds for training from which the applicant was excluded. The applicant also alleges that the respondent reduced her hours of work unfairly and that the respondent excluded the applicant in communications with parents. In the Request, the applicant requests disclosure of documents showing the training courses undertaken by the respondent’s personnel that were paid for with subsidy funds, including the title of each course, who took the courses and the cost of each course. The applicant also seeks disclosure of records showing the Halton Region Early Learning and Child Care (“ELCC”) and Early Learning and Child Development (“ELCD”) subsidies earned per employee of the respondent. The applicant further seeks disclosure of records showing the number of student’s enrolled between August 2012 and August 2014, records of the applicant’s schedule between August 2012 and August 2014, records showing staffing levels between August 2012 and August 2014 (including hours of work for staff) and copies of all notices sent to parents between August 2012 and August 2014.

3The respondent denies the applicant’s allegations and filed a Response to a Request for an Order on October 23, 2015. The respondent opposes the Request and submitted that many of the documents the applicant requested are confidential or should be requested from the Halton Region ELCC or ELCD. The respondent also submitted that it does not have some of the information requested. The respondent did not identify which documents are confidential, which documents are in the possession of the Halton Region or which documents it does not have in its possession.

Analysis and Decision

4At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. The fact that the Tribunal orders production of a document does not necessarily mean that the document will be admitted into evidence at the hearing.

5The documents requested by the applicant would appear to provide information regarding issues in dispute in this proceeding. Accordingly, the documents requested are in my view arguably relevant. The fact that some of the information may be confidential is immaterial and the Tribunal routinely orders the production of confidential information. Rule 3.3 of the Tribunal’s Rules of Procedure (“the Rules”) mandates that parties and their representatives may not use documents obtained under the Rules for any other purpose other than in the proceeding before the Tribunal. On the other hand, parties are not required to create documents that do not exist and obviously cannot produce documents not in their possession. In light of the arguable relevance of the documents requested, I find it appropriate to grant disclosure as follows:

Order

6The Tribunal orders as follows:

1. By the end of business on November 6, 2014, the respondent shall produce the following documents in its possession, if any, to the applicant:

a. Documents identifying the training courses paid for with subsidy funds from the Halton region between August 2012 and August 2014, including any documents indicating the date of such courses, the cost of the courses and who attended them;

b. Documents showing the Halton Region Early Learning and Child ELCC and Early Learning and Child Development subsidies earned per employee of the respondent;

c. Documents showing the number of student’s enrolled between August 2012 and August 2014;

d. Documents showing the applicant’s schedule between August 2012 and August 2014;

e. Documents of the respondent’s staffing levels between August 2012 and August 2014;

f. Documents indicating hours of work for the respondent’s staff between August 2012 and August 2014; and

g. Copies of all notices sent to parents between August 2012 and August 2014.