Samantha Helfrich v. Wal-Mart Canada Corp., 2015 HRTO 392

Human Rights Tribunal of Ontario

Between:

Samantha Helfrich Applicant

-and-

Wal-Mart Canada Corp. Respondent

Interim Decision

Adjudicator: Douglas Sanderson Date: March 25, 2015 Citation: 2015 HRTO 392 Indexed as: Helfrich v. Wal-Mart Canada Corp.

Written Submissions

Samantha Helfrich, Applicant Self-represented

Wal-Mart Canada Corp., Respondent Andrew Ashenhurst, Counsel

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 and reprisal. This Interim Decision addresses several outstanding issues regarding this proceeding.

Reprisal

2In an earlier Interim Decision in this matter, 2014 HRTO 1612, dated October 31, 2014, the Tribunal dismissed the respondent's request to dismiss the Application. The Tribunal rejected the respondent's argument that the substance of the Application had been dealt with in a proceeding before the Workplace Safety and Insurance Board ("WSIB"). The Tribunal found that it could not determine whether the applicant's claim of reprisal was valid because it was unclear what the reprisal claim was on the face of the Application. The Tribunal therefore directed the applicant to provide details of the alleged reprisal to the respondent and the Tribunal.

3The applicant filed her submissions as directed. The applicant submitted that the respondent retaliated against her on two different fronts for two different reasons. First the applicant stated that the respondent began to harass her shortly after she supported a co-worker in his claims for employment insurance and for severance pay with the Labour Board. Second, the applicant states that the respondent sharply reduced her hours of work after her claim to the WSIB was denied.

Analysis and Decision

4Section 8 of the Code states as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

5The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant for claiming his or her Code rights. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant's substantive rights to be free from discrimination.

6The applicant described actions she believes the respondent took to punish her for assisting a co-worker with his claims for employment insurance and severance pay and because she filed a claim with the WSIB. Assuming the applicant's assertions to be true, the respondent's actions may have been retaliatory. However, the applicant does not allege that the respondent retaliated against her because she asserted her Code rights or refused to infringe the rights of others, which is an essential element in establishing a reprisal under section 8 of the Code. Accordingly, the applicant's allegations cannot amount to a reprisal under the Code.

Production of Documents

7The applicant filed a Request for an Order During Proceedings on January 13, 2015 seeking the production of the following documents from the respondent:

1. The Wal-Mart Canada Policy Book;
2. All part-time bakery employees' times sheets;
3. Employee files for all part-time bakery employees;
4. The applicant's entire WSIB file.

The applicant also requested production of a co-worker's complaint file from the "Labour Board of Ontario" and "Employment Insurance" regarding his claims involving the respondent.

8The applicant submitted that the respondent's Policy Book is the basis for her discrimination claim. The applicant states that the respondent's policies are drafted to allow management to discriminate against workers, e.g., she states that a manager may choose to accept a doctor's note from one employee, but not from another, which she alleges is discrimination. The applicant states that there are other policies written in this manner and that she needs to examine the respondent's policy book, which she says is 4,000 pages in length, to identify them.

9The applicant states that she requires the time sheets for other part-time bakery employees to compare the hours of work she received against theirs to determine whether she received fewer hours in the relevant time period. The applicant submitted that she believes that she was unfairly reprimanded by the respondent, while other employees committed worse misconduct and received fewer and less harsh discipline. The applicant wishes to review the other employees' files to locate evidence to prove this. The applicant also seeks information regarding the raises other employees received because she understands that other employees have received larger raises than she.

10The applicant states that the respondent has disclosed portions of her employment and WSIB files, but not the complete files. The applicant states that she requires the complete files to compare to other employees. The applicant also submitted that she wishes to see any disciplinary notes in her file.

11The applicant submitted that her co-worker's claim and investigation notes from Employment Insurance and the Labour Board would demonstrate the discrimination another employee suffered while employed by the respondent. The applicant also submitted that this information would show a pattern of behaviour by the respondent towards its employees.

12The respondent filed a Response to a Request for an Order replying to the request for production. The respondent submitted that the applicant, as an employee, has access to the respondent's human resources policies. Nonetheless, the respondent produced the following four policies to the applicant: Attendance and Punctuality, Duty to Accommodate, Harassment and Discrimination in the Workplace and Working Off the Clock. The respondent submitted that it produced a printout of the hours of work for all part-time bakery employees between December 13, 2013 to October 3, 2014, as well as part-time bakery stocker employees in that period. Accordingly, the respondent submitted that it met the applicant's request.

13The respondent submitted that the applicant did not establish the arguable relevance of the employees' files of other employees. The respondent submitted that it produced the applicant's discipline file, containing all of the warnings the applicant received in the time frame of this Application. The respondent submitted that the applicant's request was based on mere speculation and has not established a foundation for disclosure of other employees' files. Regarding the applicant's WSIB file, the respondent submitted that it has produced all arguably relevant documents, including a verbal warning the applicant referred to in her request and which predated her WSIB claim. The respondent submitted that WSIB-related medical documentation is not arguably relevant and noted that it does not dispute that the applicant was diagnosed with carpal tunnel syndrome and had restrictions as a result of that condition.

Analysis and Decision

14At 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.

15It appears the respondent has satisfied the applicant's request regarding time sheets.

16This Application concerns the applicant's allegations that the respondent failed to accommodate two disabilities: carpal tunnel syndrome and another disability that causes her to be late for work. The respondent has produced several of its human resources policies that touch on these issues. The fact that the respondent may have other policies that empower managers to exercise discretion does not in my view make them arguably relevant to the issues arising in this Application. Having said that, any policy the respondent relied upon in its dealings with the applicant is arguably relevant to the matters in dispute and should be disclosed.

17The applicant's request for production of other part-time bakery employees' files is far too broad. The applicant submitted that she understands that other employees received more lenient discipline and better raises than she, without identifying the employees in question or providing information regarding how she came to this understanding. This is not a proper basis for granting her access to all of the part-time bakery employees' files to allow her to search for evidence that may support her claim.

18The applicant requested the respondent's file regarding her WSIB claim because she wishes to review any disciplinary notations in her file. The respondent stated that it has produced all disciplinary documentation regarding the applicant in the relevant time period and I have been provided with no basis for concluding otherwise. It is not apparent that any other information contained in the WSIB file has any arguable relevance to this proceeding.

19In the Application, the applicant states that a co-worker, RL, was subject to unfair treatment by one of the respondent's supervisors, which led to the termination of his employment. The applicant states that RL filed a complaint under the Employment Standards Act, seeking severance pay, and applied for employment insurance. There is nothing in the Application or any of the applicant's subsequent submissions that indicate that the issues RL experienced in his employment were related to the Code or that his circumstances were sufficiently similar to the applicant's to consider them arguably relevant to the issues in dispute in this Application. In that regard, I note that the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code and issues arising under other statutes, such as the Employment Standards Act are outside of its jurisdiction.

Conduct of the Applicant

20The respondent complained of the applicant's conduct in this matter in a letter dated February 6, 2015. The respondent submitted that the applicant made unfounded allegations against the respondent and has used insulting and discriminatory language in describing the respondent. In particular, the respondent noted that the applicant accused the respondent of lying, of breaching the privacy of an applicant in another matter by referring to a decision of the Tribunal in support of its position regarding the applicant's production request, and compared the respondent's actions with a cover up of criminal activity.

21In a letter dated March 16, 2015, the applicant apologized for any discourteous behaviour and explained that she is, of course, personally involved in this case, which has led her to allow her emotions to influence her submissions. The applicant reserved the right to make factual statements about the respondent's conduct towards her.

Analysis and Decision

22Rule A7 of the Social Justice Tribunals Ontario Common Rules states as follows:

All persons participating in proceedings before or communicating with the tribunal must act in good faith and in a manner that is courteous and respectful of the tribunal and other participants in the proceeding.

23In Cochrane v. Workplace Safety and Insurance Board, 2010 HRTO 913 at paras. 8-9, the Tribunal stated as follows:

Parties to a Tribunal application are engaged in a dispute which has been brought before the justice system. Before the Tribunal, as in courts and other tribunals, each side is entitled to access these dispute resolution processes, and may make submissions supporting their point of view. The Tribunal's process provides access to a fair and neutral decision maker, who decides the application based upon his or her findings of facts and law as they apply to a particular case.

It is understandable that parties may have strong feelings about the events that gave rise to the dispute. They may disagree strongly with the submissions made by each other, be upset about the fact that the matter is before the Tribunal, or disagree with decisions made by the adjudicator. Parties and their representatives are required, however, to conduct themselves in the Tribunal's process with courtesy and respect for each other and the Tribunal. While it is proper to express disagreement with another party's submissions or evidence, it is never acceptable to descend into personal insults, the use of uncivil language, or discriminatory comments.

24In my view, the applicant has at times used discourteous and uncivil language with respect to the respondent. The applicant's allegation that the respondent violated the privacy of other parties before the Tribunal by referring to a decision of the Tribunal was also unfounded. The Tribunal's decisions are public and it is a common practice for parties to refer to previous cases in support of their submissions. The applicant has often resorted to sarcasm and rhetorical questions in her submissions, which is also unhelpful. The applicant, however, has apologized for her discourtesy, which I accept was the result of her natural emotional attachment to this matter and, as a self-represented applicant, inexperience in litigation before this Tribunal. In my view, it suffices to remind the applicant of her obligation to act in a courteous and respectful manner in this proceeding.

Order

25The Tribunal orders as follows:

1. The applicant's allegations of reprisal are dismissed; and,
2. The applicant's request for production of documents is denied.