Ward v. Your Organized Living Store, 2015 HRTO 327

Human Rights Tribunal of Ontario

B E T W E E N:

Tracy Ward Applicant

-and-

Your Organized Living Store Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: March 16, 2015 Citation: 2015 HRTO 327 Indexed as: Ward v. Your Organized Living Store

WRITTEN SUBMISSIONS

Your Organized Living Store, Respondent Nav Bhandal, Counsel

Introduction

1This Interim Decision addresses the Request for Order During Proceedings filed by the respondent in which it sought production of documents from the applicant.

2The Application alleges that the respondent discriminated against the applicant on the basis of family status and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleged that the respondent failed to provide reasonable accommodations for her family-related responsibilities by not granting her permission to take Mondays and Tuesdays off in order to accompany her husband to medical appointments and/or by transferring her to the respondent’s Newmarket store.

Respondent’s Production Request

3The respondent requested production of the following documents:

a. copies of documents (including but not limited to jobs applied for, confirmation of submitted applications, notes showing job search efforts) detailing the applicant’s efforts to find new employment;

b. copies of documents (including but not limited to offers of employment and pay statements) detailing employment (if any) that the applicant secured following her resignation from the respondent;

c. copies of medical documents confirming the applicant is still undergoing physiotherapy and her disability; and

d. copies of medical documents confirming her husband has medical appointments every Monday and Tuesday.

4The respondent submitted that the applicant has sought compensation for lost wages and has an obligation to mitigate her losses. The respondent also submitted that the applicant alleged that she is currently undergoing physiotherapy and therefore it is entitled to documentation confirming this fact. Finally, the respondent submitted that it is entitled to documentation confirming that the applicant’s husband had medical appointments every Monday and Tuesday and that she was required to attend the appointments with him.

5The applicant did not respond to the respondent’s production request.

Findings

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. The Tribunal in McKay, above, explained the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law... A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence.

7For the reasons that follow, I find that the following documents are arguably relevant and must be produced by the applicant:

a. copies of documents (including but not limited to jobs applied for, confirmation of submitted applications, notes showing job search efforts) detailing the applicant’s efforts to find new employment. Under the Code, applicants have a duty to mitigate any losses they claim arose as a result of a respondent’s breach of the Code. When an applicant’s employment is terminated or they resign allegedly due to a respondent’s breach of the Code, he or she has an obligation to minimize any wage loss by seeking replacement work. In this case, the applicant is claiming lost wages. She has the obligation to mitigate these losses and therefore I agree that the documents sought by the respondent relating to her mitigation efforts are arguably relevant and must be produced.

b. copies of documents (including but not limited to offers of employment and pay statements) detailing employment (if any) that the applicant secured following her resignation from the respondent. I also agree that such documents are arguably relevant because any income the applicant has earned as a result of her mitigation efforts would be deducted from any lost wages awarded to her if she is successful in this case.

c. copies of documents confirming the applicant’s husband has medical appointments every Monday and Tuesday. I agree that such documentation is arguably relevant since, among other things, the applicant is claiming that the respondent breached the Code by not granting her Mondays and Tuesdays off to accompany her husband to medical appointments that he required her to attend and could not attend alone. I note that the applicant is not required to provide any medical information that would disclose any private matters regarding her husband’s disability or treatment. However, she must disclose any documentation that supports her claim that she required Mondays and Tuesdays off in order to attend to her family responsibilities and that any failure to grant her request amounts to family status discrimination.

8I do not find that the copies of medical documents confirming the applicant is still undergoing physiotherapy and her disability are arguably relevant. The applicant has not claimed discrimination based on disability and therefore these documents are not arguably relevant to the Application. However, if the applicant is claiming that her disability affects her ability to mitigate her losses by seeking a new job, she will be expected to produce evidence to support this claim. Any evidence would not have to disclose any diagnosis but it would have to identify the applicant’s disability-related restrictions and support her claim that these restrictions impede her ability to find replacement employment.

Issues to clarify at the hearing

9I note two issues that the parties will be expected to clarify at the hearing.

10First, there appears to be some ambiguity in the materials filed with the Tribunal as to the applicant’s present employment status. The applicant refers to the respondent in her Application as her “current employer” and does not refer to any termination of employment or resignation. She also seeks Mondays and Tuesdays off as a remedy (even though she does not seek reinstatement). These factors appear to suggest that she remains employed with the respondent. In the response, the respondent stated that the applicant resigned her employment. The parties will be expected to clarify the applicant’s employment status at the hearing.

11Second, the applicant refers to harassment several times in her Application and Reply. At the hearing, she will be expected to clarify the link between this alleged harassment and the grounds protected under the Code. The Tribunal does not have jurisdiction to grant remedies for general harassment or bullying that are not connected to any Code ground. The applicant will be expected to clarify the connection between her harassment claims and the Code grounds of family status and/or reprisal listed in her Application.

DIRECTION

12The Tribunal directs the applicant to produce to the respondent and file with the Tribunal:

a. copies of documents (including but not limited to jobs applied for, confirmation of submitted applications, notes showing job search efforts) detailing the applicant’s efforts to find new employment.

b. copies of documents (including but not limited to offers of employment and pay statements) detailing employment (if any) that the applicant secured following her resignation from the respondent.

c. copies of medical documents confirming her husband has medical appointments every Monday and Tuesday as further described in para. 7(c) above.

13These documents should be produced no later than March 30, 2015.