Lorrie Dempsey v. Costco Wholesale Canada Ltd., 2015 HRTO 229

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorrie Dempsey Applicant

-and-

Costco Wholesale Canada Ltd. Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: February 24, 2015 Citation: 2015 HRTO 229 Indexed as: Dempsey v. Costco Wholesale Canada Ltd.

WRITTEN SUBMISSIONS

Lorrie Dempsey, Applicant Jo-Ann Seamon, Counsel

Costco Wholesale Canada Ltd., Respondent No one appearing

1This is an Application filed under s. 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 disability.

Requests for Orders

2The applicant filed Requests for Order During Proceeding on October 27, 2014 (the "first request") and December 23, 2014 (the "second request"), respectively. The respondent did not respond to either request and the time for doing so has passed.

3In the first request, the applicant seeks an order permitting her to amend the Application to include the ground of reprisal. The applicant submitted that the facts set out in the Application support a reprisal allegation. The applicant submitted that she does not seek to add any new factual allegations and merely wishes to clarify the legal characterization of her allegations. Accordingly, the applicant submitted that the respondent shall suffer no prejudice should the Tribunal grant the amendment.

4In determining requests to amend pleadings under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Dunford v. Holiday Ford Sales, 2009 HRTO 1563. The applicant seeks to include the ground of reprisal, which in my view is an allegation supported by the facts alleged in the Application. The applicant has not changed the factual foundation of her claim in any respect and in my opinion granting the amendment will not prejudice the respondent. In any event, the respondent has not identified any prejudice that may arise.

5In the second request, the applicant seeks an order requiring the respondent to produce "all written communications, whether by email, text, memo or letter, between or among the Respondent's staff which discuss the Applicant's medical conditions, medical restrictions, accommodation needs, and her resignation from employment". The applicant submitted that any such communications would be relevant to the issues of the respondent's knowledge of the applicant's disability-related restrictions and the respondent's actions to address these restrictions.

6At 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.

7The applicant's request is in my view overly broad and amounts to something of a fishing expedition. The applicant worked for the respondent from May 15, 2013 to on or about December 2, 2013. The applicant states that the respondent accommodated her disability related needs until late October 2013. The material filed by the parties indicate that on or about October 25, 2013 the applicant complained that she was assigned duties that were outside of her disability related restrictions and that her supervisors no longer accommodated her properly after that complaint. The applicant states that she ultimately resigned as a result. In my view, the relevant time period runs from October 25, 2013 to the date of her resignation and that only communications amongst or between the supervisors or managers that dealt with the applicant in that time period are arguably relevant, i.e., Tyler Sorokan, Josie Spina, Tinal Briscoe and Lisa Rygersberg.

Pre-hearing Disclosure

8Pursuant to Rules 16 and 17 of the Tribunal's Rules of Procedure, the parties were required to file with the Tribunal and deliver to the other party the documents on which they intend to rely and witness statements setting out the expected evidence of each witness they intend to present at the hearing by January 26, 2015. The respondent has complied with this obligation, but the applicant has not. There are serious consequences for this case if the applicant does not comply with her obligations under the Tribunal's Rules, as set out below.

Order

9The Tribunal orders as follows:

1. The applicant's request to amend the Application is granted;

2. By the end of business on March 6, 2015, the respondent shall produce to the applicant any e-mail, note, memorandum or any other written communication between or among Tyler Sorokan, Josie Spina, Tina Briscoe and Lisa Rygersberg, dated between October 25, 2013 and December 2, 2013 and addressing the applicant's medical conditions, medical restrictions, accommodation needs, and her resignation from employment; and,

3. By the end of business on March 6, 2015, the applicant shall deliver to the respondent and file with the Tribunal the documents she intends to rely upon at the hearing, a list of her witnesses and a statement describing what her witnesses will say when they testify. If the applicant has not complied with this Order, or does not communicate with the Tribunal by the end of business on March 6, 2015, the Application may be dismissed as abandoned.