Betournay v. Benson Group Inc., 2016 HRTO 1240

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Betournay

Applicant

-and-

Benson Group Inc.

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana

Date: September 22, 2016

Citation: 2016 HRTO 1240

Indexed as: Betournay v. Benson Group Inc.

WRITTEN SUBMISSIONS

Lisa Betournay, Applicant

Robert Coulombe, Counsel

Benson Group Inc., Respondent

Jacques Leduc, Counsel

1This matter is scheduled for a hearing in Ottawa on September 26, 2016.

2On September 2, 2016, the applicant filed a Request for an Order During Proceedings (“Request”), seeking production by the respondent of all arguably relevant documents in its possession. The applicant also sought particulars of the respondent’s witness statements, alleging that they lack specifics and fail to provide sufficient details of the intended evidence.

3This Interim Decision determines part of the Request. The remaining issues may be addressed at the hearing.

DISCLOSURE OBLIGATIONS

4I have twice directed the respondent to confirm with the Tribunal delivery to the applicant of all arguably relevant documents and to comply with its obligations under Rule 16 and 17 of the Tribunal’s Rules of Procedure. The respondent continues to disregard this direction.

5On September 16, 2016, the respondent filed a response to the Request in which it provides additional particulars of the respondent’s witness statements and responds in part to the request for specific documents the applicant argues are arguably relevant. With respect to category (c) of the Request and sub-paragraphs i. to iv., the respondent claims these documents have already been disclosed and delivered as part of the respondent’s arguably relevant documents. Category (c) is listed at page 5 of the Request as follows:

c. all documents, including email correspondence, notes, memos, internal documentation, relating to:

i. directions given to management, and measures adopted, relating to cost cutting, efficiencies of operation and specifically, control of labour costs;

ii. the merging of the Purchasing and Inventory Departments;

iii. the termination of the Applicant's employment;

iv. the Applicant's disability, including her leave, return to work and requests for accommodation.

6The hearing in this matter is fast approaching and it is still not clear whether the respondent has complied with its obligation to disclose all arguably relevant documents with the exception of the information provided in its response to the Request. It appears that with respect to the documents listed in paragraph [5] the respondent agrees these are arguably relevant as it claims to have already delivered them to the applicant. However, whether the documents listed above have actually been delivered to the applicant appears to remain in dispute. As noted above, the respondent has never confirmed with the Tribunal that it delivered all arguably relevant documents to the applicant. Further, in her Request, the applicant indicates that despite efforts to contact the respondent to obtain disclosure of these documents, and respondent counsel’s assurances, this has still not occurred.

7I find the documents listed in paragraph [5] as category (c) arguably relevant and order the respondent to produce them, if it has not already done so.

Production of audited financial statements

8In its Request, the applicant seeks an order for production by the respondent of complete audited financial statements for the fiscal years 2008 to 2015.

9The respondent opposes production of this information on the grounds that audited financial statements are extremely sensitive and are confidential. The respondent submits that while it eliminated the applicant’s position, the economic downturn is one factor among many that motivated its decision. It is also submits that financial statements do not reflect the environment in which decisions regarding labour are made, that it will be prejudiced by the revelation of these statements, and that there is no nexus between the documents sought and the issue before the Tribunal.

10At 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 (“McKay”). The requesting party has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus, there must be a link between the materials that are sought and the allegations made in the application. A link may be established if the information requested could be used 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. See McKay, above, at para. 13.

11In the Application, the applicant alleges that the respondent failed to accommodate her disability and that her disability was the reason for her termination. In the Response, the respondent submits that it fully accommodated the applicant’s disability-related needs and that her position was terminated as part of restructuring and consolidation efforts within the company. It reassigned work and reduced personnel throughout its operations as a result of the difficult financial period and the applicant’s job was eliminated by way of a permanent layoff.

12In my view the audited financial statements from 2012 onwards are arguably relevant and should be disclosed to the applicant. The parties dispute the reason for which the applicant was terminated. In light of the respondent’s claim that its financial performance and need for cost-cutting were among the factors that led to the decision to end the applicant’s employment, the audited financial statements appear to be directly relevant to the respondent’s defence to the applicant’s allegations. If the respondent intends to rely on that defence and fails to disclose and produce the financial statements as directed I may not permit it to rely on those documents at the hearing.

13I am not persuaded that the respondent must disclose all its financial statements dating back to 2008. The applicant was hired by the respondent in March of 2013 and was terminated in September of 2015. I find it sufficient for the respondent to disclose its financial statements from 2012 to 2015. These statements would cover the period directly preceding the applicant’s hiring as well as her full period of employment.

14With respect to the respondent’s concerns about the sensitive nature of the information provided, I note that Rule 3.3 of the Tribunal’s Rules of Procedure provides that parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

15Any outstanding production issues with respect to the remaining categories of documents requested will be addressed at the outset of the hearing.

Mediation/Adjudication

16I note that Rule 15A of the Tribunal’s Rules provides that the parties may agree to participate in mediation/adjudication on the scheduled hearing date. At the outset of the hearing, the assigned adjudicator, with the consent of the parties, may engage in discussions with the parties to try and resolve the matter before proceeding with the hearing. In such circumstances, the mediator may continue to hear the matter as adjudicator.

17The parties can advise at the outset of the hearing whether they agree to engage in this process.

ORDER

18The Tribunal orders:

a. If the respondent has not yet delivered its arguably relevant documents to the applicant, including the documents referenced at paragraph [5] above, it must deliver these documents to the applicant by Friday, September 23, 2016 at 9 a.m.;

b. By Friday, September 23, 2016 at 9 a.m., the respondent must provide the Tribunal with confirmation of delivery of all arguably relevant documents to the applicant. If the respondent claims its arguably relevant documents have already been delivered, it must provide confirmation of delivery of them and the date on which they were delivered;

c. If the respondent had not yet delivered its arguably relevant documents to the applicant, it must provide written explanation for its refusal to provide these documents to the applicant in accordance with its obligations under Rule 16 and 17 and the Tribunal’s previous directions;

d. By Friday, September 23, 2016 at 9 a.m., the respondent must disclose and produce to the applicant copies of its audited financial statements for the corporation for the fiscal years 2012 to 2015, inclusive; and

e. Any outstanding production issues will be dealt with at the hearing.