HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deanna Steel
Applicant
-and-
Johnson Controls Automotive Canada LP and Paula Watkins
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Steel v. Johnson Controls Automotive Canada LP
WRITTEN SUBMISSIONS
Deanna Steel, Applicant
Teresa Shearer, Representative
Johnson Controls Automotive Canada LP and Paula Watkins, Respondents
Robert Atkinson, Counsel
1This Interim Decision addresses the applicant’s requests for the production of documents and also provides directions for the hearing of this matter scheduled for February 4-5, 2015.
Background to the Application
2The applicant alleges that the respondents discriminated against and harassed her on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Among other things, the applicant alleges that the respondents discriminated against her in or around April 2013 by requiring her to perform work duties that she could not perform due to her disability and by sending her home on April 5, 2013. The applicant also alleges that she was discriminated against and/or harassed when Ms. Watkins, the corporate respondent’s Occupational Health Nurse, allegedly suggested that the applicant’s claim for certain disability benefits was not legitimate by telling the insurer “Our people know the system well” and providing allegedly false information about the applicant.
Applicant’s Production Request
3By Requests for Orders During Proceedings (“RFOP”) dated December 22 and 23, 2014, the applicant requested the production of certain documents from the respondents.
4The applicant had filed two prior RFOPs which the Tribunal found to be premature, as the requests were made prior to the deadline for the disclosure of documents in this matter. In her previous RFOPs, the applicant sought some of the same documents that she requested in her December 22-23, 2014 RFOPs.
5The respondents filed a Response to the applicant’s premature RFOP dated October 28, 2014. However, the respondents did not file a Response to the applicant’s December 22 and 23, 2014 RFOPs.
December 22, 2014 RFOP
6In her December 22, 2014 RFOP, the applicant sought production of the following documents:
a. Page 2 of an e-mail from a Manulife Representative to Paula Watkins dated May 31, 2013, included at tab 105 of the respondents’ book of documents for the hearing.
The applicant states that she would like to see if there was a response to the Manulife representative’s e-mail from Paula Watkins.
In the Response to the applicant’s October 28, 2014 RFOP, the corporate respondent stated that it has searched available records and has been unable to find any such response.
b. All of Nancy Mayer’s files concerning the applicant.
The applicant claims that production of the files is necessary since Ms. Mayer has passed away and she is unable to call her as a witness. The applicant claims that she told Ms. Mayer that she was having spasms in her hand and that Ms. Mayer told her to move to the next job if that happened. The applicant also claims that she spoke to Ms. Mayer about her medical condition on April 5, 2013 and that Ms. Mayer then spoke to Ms. Watkins about it.
In the Response to the applicant’s October 28, 2014 RFOP, the corporate respondent stated that Ms. Mayer had no notes of the April 5, 2013 events and statements referred to by the applicant.
c. Paula Watkins’ notes from April 5, 2013 regarding the applicant’s discussion with Nancy Mayer on that day.
d. The corporate respondent’s phone records of alleged attempts to telephone the applicant referred to in the documents at tabs 47, 49, and 50 of the respondents’ book of documents.
- In the Response to the applicant’s October 28, 2014 RFOP, the corporate respondent advised that it was in the process of determining whether these records were available and, if so, easily retrieved. The corporate respondent advised that, if so, it would provide the records without prejudice to any position the respondents may take as to the admissibility of the records at the hearing.
e. Aaron Champken’s notes form March 7, 2012.
- The applicant claims she told Mr. Champken that day that her neck was hurting and therefore that the corporate respondent knew about her neck injury as of this date.
f. The applicant’s complete employment file.
The applicant claims that there are a lot of inaccuracies in the respondents’ insinuations and that she has a right to correct these inaccuracies.
In the Response to the applicant’s October 28, 2014 RFOP, the corporate respondent took the position that the applicant’s request is overly broad and fails to identify any document or type of document which could be arguably relevant to the issues in the Application.
7At 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. It is the requesting party who has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after materials and the subject-matter of the Application. 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.
8For the reasons that follow, I find that the following documents are arguably relevant and must be produced by the respondents:
a. The complete e-mail from the Manulife Representative to Paula Watkins dated May 31, 2013, included at tab 105 of the respondents’ book of documents. The copy of the e-mail included at tab 105 includes only page 1 of 2. As well, there is a portion of the e-mail that appears to have been redacted without any explanation for the redaction. In my view, the full e-mail is arguably relevant to this proceeding and must be produced, subject to any redactions of portions that are legally privileged. If the respondents are claiming privilege over the redacted portion of the e-mail, they must provide an explanation for why they are claiming privilege.
- The respondents also should formally confirm once again that they have searched available records and have been unable to find any response to the e-mail from Ms. Watkins.
b. Any files kept by Nancy Mayer regarding the applicant’s medical condition and/or ability to work between March 7, 2012 and April 5, 2013. The corporate respondent stated that Ms. Mayer had no notes of the April 5, 2013 events and statements referred to by the applicant. However, it seems that the applicant is claiming that she advised Ms. Mayer’s that she had spasms in her hand and that this affected her ability to fulfill certain tasks. At this stage, it is difficult to assess the relevance of Ms. Mayer’s files. However, in my view, these files for the period extending from the date of the applicant’s work-related injury to her last day of work which appears to have been April 5, 2013 are arguably relevant and must be produced. This is especially the case since Ms. Mayer has passed away and will not be testifying in this proceeding.
c. Any notes made by Paula Watkins’ on April 5, 2013 regarding the applicant’s discussion with Nancy Mayer on that day.
- In my view, such notes are arguably relevant to this matter since the applicant’s allegations relate in part to the respondents’ direction that she perform certain job duties on April 5, 2013.
d. The corporate respondent’s phone records of alleged attempts to telephone the applicant referred to in the documents at tabs 47, 49, and 50 of the respondents’ book of documents.
- In light of the reference to attempts to call the applicant in the documents at the three tabs listed above, it appears that the respondents may rely upon such calls being made. Once again, the relevance of the phone records is difficult to determine at this preliminary stage of proceedings. However, in my view, the requested phone records are arguably relevant in light of the respondents’ inclusion of the documents at tabs 47, 49, and 50 of their book of documents.
e. Any notes made by Aaron Champken regarding the applicant informing him of her injuries on or around March 7, 2012.
- The applicant claims that she informed Mr. Champken of her neck injury on this date. In my view, any notes by Mr. Champken on this date are arguably relevant and must be produced.
9With respect to the applicant’s request for her complete employment file, I find that the applicant’s request is overly broad. If the applicant wishes production of documents from her employment file, she must state the documents, or types of documents, she expects are contained in her employment file and explain why they are arguably relevant. It is not sufficient to claim in a general way that she wishes to correct inaccuracies in the respondents’ insinuations without identifying any alleged inaccuracies and the relevance of the inaccuracies to the matters at issue in this proceeding.
10The production order set out above is made without prejudice to any position the respondents may take as to the admissibility of the documents at the hearing.
December 23, 2014 RFOP
11In her December 23, 2014 RFOP, the applicant requested production of a Notification of Concern that Ms. Watkins allegedly received from the Ontario College of Nurses. The applicant states that she was told that she was not entitled to receive a copy of information that Ms. Watkins submitted to the College of Nurses. The applicant states that her objective is to ensure that Ms. Watkins stated factual findings instead of untruths.
12In her witness statement filed in advance of the hearing, Ms. Watkins states that the applicant filed a complaint against her with the Ontario College of Nurses. The College issued a decision in which it found two of the applicant’s complaints were unsupported. The College found one of the applicant’s complaints to be supported and issued a Notification of Concern. The Notification of Concern appears to be included at the end of the College’s decision under the heading “Concern”.
13It is unclear whether the applicant is requesting a copy of the submissions made by Ms. Watkins to the College. If so, such a document is privileged and inadmissible in this proceeding pursuant to s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
14For this reason, I deny the production request contained in the applicant’s December 23, 2014 RFOP.
Mediation-Adjudication
15The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal, preferably prior to the first day of the hearing.
ORDER
16For the reasons set out above, the respondents shall produce to the following to the applicant by January 26, 2015:
a. The complete e-mail from the Manulife Representative to Paula Watkins dated May 31, 2013, included at tab 105 of the respondents’ book of documents, subject to any redactions of portions that are legally privileged. If the respondents are claiming privilege over the redacted portion of the e-mail, they must provide an explanation for why they are claiming privilege.
b. Any files kept by Nancy Mayer regarding the applicant’s medical condition and/or ability to work between March 7, 2012 and April 5, 2013.
c. Any notes made by Paula Watkins’ on April 5, 2013 regarding the applicant’s discussion with Nancy Mayer on that day.
d. The corporate respondent’s phone records of alleged attempts to telephone the applicant referred to in the documents at tabs 47, 49, and 50 of the respondents’ book of documents.
e. Any notes made by Aaron Champken regarding the applicant informing him of her injuries on or around March 7, 2012.
Dated at Toronto, this 15th day of January, 2015.
“Signed by”
Jo-Anne Pickel
Vice-chair