Sarah Zdybel v. 2252316 Ontario Inc. and Lois Barron-Ralph, 2015 HRTO 77

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Zdybel Applicant

-and-

2252316 Ontario Inc. and Lois Barron-Ralph Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: January 20, 2015 Citation: 2015 HRTO 77 Indexed as: Zdybel v. 2252316 Ontario Inc.

WRITTEN SUBMISSIONS

Sarah Zdybel, Applicant Self-represented

2252316 Ontario Inc. and Lois Barron-Ralph, Respondents No submissions

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 sex. A hearing in respect of this Application is scheduled January 26 and 27, 2015, in Toronto.

2This Interim Decision addresses a Request for an Order During Proceedings that the applicant filed on December 29, 2014 seeking an order requiring the respondents to produce the following documents:

1. The applicant’s Record of Employment (“ROE”) from Glenn Burney Lodge;
2. All schedules and time sheets pertaining to the applicant’s employment at Glenn Burney Lodge from April 16, 2013 to June 27, 2013; and,
3. Any electronic communications sent to or received by the applicant at her glennburneylodge.ca e-mail account.

3The applicant submitted that she has not yet seen her ROE and that the ROE would show who was responsible for the termination of her employment from Glenn Burney Lodge. The applicant submitted that the time sheets and schedules would be evidence refuting the respondents’ allegations that she was late, lazy and exhibited poor time management. The applicant submitted that she required time sheets prior to May 1, 2012 because her employment began on or about April 16, 2012. In the parties’ correspondence regarding the disclosure of these documents, which the parties filed with the Tribunal, the applicant explained to counsel for the respondent that she required the schedule of Ron Cherry, the executive chef, to refute the respondents’ position that he wanted the applicant dismissed in early May 2012 because he rarely attended at the workplace until June 2012. The applicant submitted that she requires copies of electronic communications to and from her glennburneylodge.ca account to refute the respondents’ position that Wesley Thuro had little contact with the applicant and the respondents’ position that the applicant was generally the subject of complaints about her work. The applicant also submitted, however, that she is currently unaware of the content and availability of her glennburneylodge.ca account and submitted that she does not deem them to be necessary, but would like to view them in search of pertinent content.

4The respondents did not file a Response for a Request for an Order and the time for doing so has passed. However, on December 29, 2014, the respondents delivered work schedules for the applicant and several other employees (but not Mr. Cherry) for May and June, presumably of 2012. In the filed correspondence, counsel for the respondents stated that the time sheets may not exist, but undertook to look for them and advised the applicant that she was free to examine Mr. Cherry when he testifies.

Analysis and Decision

5At 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.

6This Application concerns the applicant’s employment with the organizational respondent in the spring and summer of 2012; therefore, it appears that the applicant’s references to April 2013 and June 2013 were typographical errors. I am satisfied that the applicant’s ROE and the requested timesheets and schedules, including Mr. Cherry’s schedule, are arguably relevant and should be produced. The respondent has already produced timesheets for the applicant and several other employees. The respondent has also undertaken to search for timesheets, but has not yet reported the results of the search.

7In my view, the e-mail communications between Mr. Thuro and the applicant are arguably relevant because there appears to be an issue of whether he and the applicant were in contact with each other while she worked at the lodge. In other respects, the applicant’s request regarding her glennburneylodge.ca account amounts to a fishing expedition because she simply wishes to review the messages contained in her account to search for pertinent content. The applicant also acknowledged that it may not be possible to meet her request regarding her e-mail account because she understands that Mr. Thuro’s account had been compromised.

Order

8The Tribunal orders as follows:

1. By the end of business on January 23, 2015, the respondents shall provide the applicant with her ROE in respect of her employment with the organizational respondent;
2. By the end of business on January 23, 2015, the respondents shall provide a copy of Ron Cherry’s work schedule between April 16, 2012 and June 27, 2012;
3. By the end of business on January 23, 2015, the respondents shall provide the applicant with copies of her time sheets in respect of her employment with the organizational respondent between April 16, 2012 and June 27, 2013;
4. By the end of business on January 23, 2015, the respondents shall provide the applicant with copies of any e-mail messages between Wesley Thuro and the applicant on her glennburneylodge.ca account between April 16, 2012 and June 27, 2013;