Ball v. 1772887 Ontario Limited operating as St. Joseph Content, 2015 HRTO 693

Human Rights Tribunal of Ontario

B E T W E E N:

Erica Ball Applicant

-and-

1772887 Ontario Limited operating as St. Joseph Content Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: May 27, 2015 Citation: 2015 HRTO 693 Indexed as: Ball v. 1772887 Ontario Limited operating as St. Joseph Content

WRITTEN SUBMISSIONS

Erica Ball, Applicant Nicole Simes, Counsel

1772887 Ontario Limited operating as St. Joseph Content, Respondent Nafisah Chowdhury, Counsel

1This Interim Decision addresses the applicant’s requests for the production of documents and particulars in advance of the hearing scheduled for August 14, 2015.

Background to the Application

2The applicant alleges that the respondent discriminated against 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 respondent discriminated against her when it failed to provide reasonable accommodations for her disability and terminated her employment.

Applicant’s Production Request

3By Request for Order During Proceedings (“RFOP”), the applicant requested the production of certain documents and particulars relating to:

a. the respondent’s hiring of a temporary contract worker due to the applicant’s unscheduled absences;

b. the applicant’s transfer to the accounting department;

c. the applicant’s transfer back to the respondent’s proof reading department; and

d. the applicant’s termination.

Applicable Law

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. 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.

Production Request Re. Temporary Contract Worker

5In its Response, the respondent provided all of the particulars requested by the applicant except for the contract worker’s income for 2012/13. I find that the contract worker’s income for 2012/13 is arguably relevant and must be disclosed.

6The respondent agreed to provide a redacted copy of the relevant contract(s). The respondent may redact the employee’s name and any private information of the employee such as his or her social insurance number. No other information should be redacted from the contract(s).

Production Request Re. Applicant’s Transfer to Accounting

7The applicant requested that the respondent produce the formal letter, if any, provided to her confirming her transfer to the Accounts Payable department. The applicant noted that a representative of the respondent indicated in an e-mail that it would send the applicant a formalized letter outlining her duties on November 25, 2013. I agree that such a letter is arguably relevant to the issues in this case.

8In its Response, the respondent stated that it has produced all relevant documents in its possession and that there are no further documents in this regard.

9The respondent must confirm in writing that there exists no formalized letter outlining the applicant’s job duties in the accounts payable department.

Production Request Re. Applicant’s Transfer Back to Proof Reading

10The applicant requested that the respondent disclose any documents regarding its decision to transfer the applicant back to the proof reading department. I agree that such documents are arguably relevant to the issues in this case.

11In its Response, the respondent stated that it has produced all relevant documents in its possession and that there are no further documents in this regard.

12The respondent is ordered to search its records to ensure that it has produced all arguably relevant documents regarding its decision to transfer the applicant back to the proof reading department. This includes any documents that are in electronic form, such as e-mails. The respondent is ordered to produce any arguably relevant documents regarding its decision to transfer the applicant back to the proof reading department that have not to date been provided to the applicant.

Production Request Re. Applicant’s Termination

13The applicant requested certain particulars relating to employee terminations that occurred during the alleged corporate downsizing that commenced in January 2013. She sought the following particulars:

a. date of termination

b. department that the employee worked in

c. position

d. length of service

e. whether the employee was part-time or full-time

f. whether the employee was temporary or permanent.

14She also sought copies of documents that would confirm the particulars provided.

15The respondent agreed to provide a spread sheet setting out the terminations that took place in 2013/2014 and the particulars sought by the applicant for each of the terminations. However, it submitted that the documents pertaining to the corporate downsizing are highly confidential and commercially sensitive. The respondent submitted that the documents themselves are of limited value to the Tribunal’s truth seeking function and that the prejudice of producing them outweighs their probative value.

16I agree with the applicant that the particulars as well as the documents sought are arguably relevant to the issues raised in this proceeding. The respondent appears to assert, among other things, that its corporate downsizing provided a non-discriminatory reason for the termination of the applicant’s employment. The Tribunal will require evidence to support this claim. In my view, the documents are of great value to this proceeding. They are arguably relevant and must be produced.

17With respect to the respondent’s confidentiality concerns, these documents are subject to Rule 3.3 of the Tribunal’s Rules of Procedure, which essentially, articulates the implied undertaking rule. This rule stipulates that information obtained in the course of a proceeding cannot be used by the parties for any purpose other than in the proceedings before the Tribunal.

18The Supreme Court of Canada explained the rationale for the underlying implied undertaking rule in Juman v. Doucette, 2008 SCC 8 at para. 25. Among other things, it held that the public interest in getting at the truth in a proceeding often requires the invasion of a litigant or third party’s privacy interests. Those privacy interests are, nevertheless, entitled to a measure of protection; the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone.

19Thus, Rule 3.3 and the implied undertaking rule mean that the applicant may not use any documents produced by the respondent for any purpose outside of this proceeding before the Tribunal. Although she may refer to the materials in her evidence and in her submissions before the Tribunal, she may not disclose them or their contents outside this context.

ORDER

20For the reasons set out above, the respondents shall produce or disclose the following to the applicant within 21 days of this Interim Decision:

a. the income during 2012/13 of the contract worker hired by the respondent due to the applicant’s unscheduled absences;

b. a copy of the contract(s) relating to this contract worker. The respondent may redact the employee’s name and any private information of the employee such as his or her social insurance number. No other information may be redacted from the contract(s).

c. any arguably relevant documents regarding its decision to transfer the applicant back to the proof reading department that have not to date been provided to the applicant. This includes any documents that are in electronic form, such as e-mails.

d. the following particulars relating to the employees terminated during the respondent’s alleged corporate downsizing which took place during 2013/ 2014:

• date of termination

• department that the employee worked in

• position

• length of service

• whether the employee was part-time or full-time

• whether the employee was temporary or permanent.

e. any arguably relevant documents that would support or confirm the particulars provided in response to item d. above. The respondent may redact employee names and any private information of employees such as their social insurance number. No other information may be redacted from the documents.

21Finally, the respondent must confirm in writing to the applicant and the Tribunal that there exists no formalized letter outlining the applicant’s job duties in the accounts payable department.

22I am not seized of this matter.