Terry-Ann Wellington v. Southern Sanitation Inc. o/a Wasteco, 2016 HRTO 1303

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terry-Ann Wellington

Applicant

-and-

Southern Sanitation Inc. o/a Wasteco

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 7, 2016

Citation: 2016 HRTO 1303

Indexed as: Wellington v. Southern Sanitation Inc.

WRITTEN SUBMISSIONS

Terry-Ann Wellington, Applicant

Self-represented

Southern Sanitation Inc. o/a Wasteco, Respondent

Matthew Dewar, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of race, colour, place of origin and disability. The applicant alleges that during her employment with the respondent she was subject to aggressive and unwarranted performance management, unfairly low wage increases, unwarranted scrutiny and bullying and harassing behaviour by co-workers and managers, including comments about her race. The applicant alleges that she complained about this treatment, but nothing was done. The applicant describes herself as a dark-skinned Caribbean female and attributes this differential treatment to the fact that she is a racialized person. The applicant states that her health suffered because of the workplace harassment she experienced, and commenced a sick leave in December 2013. The applicant has not returned to work, but alleges that she was informed that she should resign.

Application Amended

2On September 16, 2016, the applicant filed the documents she intends to rely upon and her witness statement, as required by the Tribunal's Rules of Procedure. Along with these documents, the applicant included submissions entitled "Form 10 #3". These submissions requested an amendment of the Application to include other instances of alleged discrimination. The respondent filed a Response to a Request for an Order on September 22, 2016, purporting to object to these amendments. Review of the file, however, reveals that the applicant's submissions formed part of a Request for an Order During Proceedings that the applicant filed on June 30, 2015. The respondent filed a Response to a Request for an Order on July 14, 2015, in which it stated that it did not object to the amendments. Accordingly, the Tribunal granted the amendments in a Case Assessment Direction dated July 21, 2015, and there is no basis for the respondent's objection.

Respondent's Request

3Also on September 22, 2016, the respondent filed a Request for an Order During Proceedings seeking production of documents and an adjournment of the hearing. The applicant has not responded to the request and the time for doing so has passed. The respondent submitted that the Tribunal declined to defer this Application pending the conclusion of the applicant's civil action against Great-West Life Assurance Company with respect to long term disability benefits. See 2016 HRTO 722. The respondent submitted that the Tribunal noted that the civil proceeding may have some impact on the issue of compensation in this Application and that the applicant would be required to provide arguably relevant documents, including information from the civil proceeding. The respondent submitted that the applicant has not provided any information regarding the settlement of the civil action. The respondent also submitted that the applicant has not provided any medical information regarding her disability claim, how her disability arose or how it affects her ability to work. The respondent also submitted that it received documents that purport to indicate that the applicant received pay from the respondent several months after she began her medical leave. The respondent submitted that the documents did not originate from the respondent and the applicant was not actively employed by the respondent on the dates in question. The respondent submitted that the documents described above are relevant to the applicant's credibility and her claim for income loss. The respondent submitted that the hearing should be adjourned in light of the applicant's failure to produce these documents.

Analysis and Decision

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. "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.

5Information regarding any compensation the applicant received in her civil action against the disability insurer would be relevant to the issue of the financial remedy, if any, the applicant may receive in this proceeding. It is not clear, however, that this civil action has concluded or that the applicant received any financial settlement or award. In these circumstances, it is appropriate to direct the applicant to update the status of the civil action and to indicate whether she received any financial compensation as a result of that action.

6The applicant alleges that the harassment and discrimination that she experienced while working for the respondent caused her to experience medical issues that led to her taking a leave of absence. Any documents (e.g., her doctors' notes and records) regarding these medical issues is arguably relevant and should be disclosed. Similarly, any documents (e.g., pay statements, job offers, etc.) about income she earned since she began her leave of absence are arguably relevant and should be disclosed.

Order

7The Tribunal orders as follows:

1. Within 7 days of the date of this Interim Decision, the applicant shall advise the Tribunal and the respondent of the status of her civil action against Great-West Life Assurance Company regarding long term disability benefits and shall also advise whether she received any financial compensation, either by settlement or an award of the Court, as a result of that action;

2. Within 7 days of the date of this Interim Decision, the applicant shall file with the Tribunal and deliver to the respondent any documents in her control or possession, including her doctor's clinical notes and records, regarding the medical condition(s) that caused her to commence a medical leave in December 2013; and,

3. Within 7 days of the date of this Interim Decision, the applicant shall file with the Tribunal and deliver to the respondent, any documents in her control or possession regarding any employment she has obtained and income she has received since she began her medical leave from the respondent in December 2013.

8In my view, adjournment of the hearing is not necessary. Any issues regarding the sufficiency of the applicant's disclosure can be raised at the hearing.