HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Sutton
Applicant
-and-
Macfab Manufacturing Inc.
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Sutton v. Macfab Manufacturing Inc.
1A hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, is scheduled for November 7 and 8, 2016, in Toronto.
2This Interim Decision addresses the applicant`s October 26, 2016 Request for an Order During Proceedings (“RFOP”) that includes the following:
A request to amend the Application;
A request for particulars; and
A request for production of documents.
3This RFOP was filed very late in the process, only two weeks prior to the hearing, and the respondent has not had an opportunity to respond to the RFOP. I take that into account in making this order.
request to amend
4The applicant requests an order to amend the Application to add the ground of reprisal. The applicant makes the request pursuant to Rule 1.7(c) of the Tribunal’s Rules of Procedure, which provides as follows: “In order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may allow any filing to be amended”.
5The applicant argues that the request to amend causes minimal prejudice to the respondent as it is made in advance of the hearing and does not raise new facts.
6The Tribunal will hear oral submissions on the request to amend as a preliminary matter at the hearing. The respondent may file written submissions, prior to the hearing, on the request to amend.
Request for particulars
7The applicant relies on C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para. 7, to request that the Tribunal order amended witness statements for Ewa Glinski, Ron Nascimento, Nick Panettieri, and Chris Macmorine.
8The witness statements regarding the witnesses mentioned above provide only a description of the general topics about which each witness is expected to testify and do not meet the requirements of the Tribunal’s jurisprudence.
9Within seven days of the date of this Interim Decision, the respondent is ordered to file with the Tribunal and deliver to the applicant particulars regarding the expected testimony of those witnesses.
request for production of documents
10The applicant’s request for production includes the following:
Disclosure of the applicant’s entire employee file as described in the RFOP;
The entire log book of the applicant;
The records related to the applicant’s harassment complaint and investigation of the complaint, including all records related to the change to the applicant’s reporting structure after she complained;
All records related to final staffing and planning related to the respondent’s move to a new location; the decision to eliminate the applicant’s position; a list of all the positions that have been eliminated in 2015 to present, including the date the position was eliminated; a list of all the positions that were eliminated in 2015 but have been re-established, including when the position was re-established; and all records related to the decision to terminate the applicant’s employment on a “without cause” basis.
All records related to the termination meeting on October 20, 2015, as described in the RFOP.
Disclosure of records related to Mr. Burns informing Human Resources about the incidents that occurred on or about April 10, 2015, along with informing Human Resources about any other incident related to the applicant’s inappropriate conduct and the response from Human Resources related to the applicant’s conduct.
11The applicant argues that the Application relates to an allegation of discrimination with respect to employment because of sex, sexual harassment, sexual solicitation and advances while the applicant was an employee with the respondent from October 15, 2014 until October 20, 2015. The applicant alleges she was sexually harassed and when she told the alleged harasser, his conduct changed to retaliation, resulting in her termination.
12The applicant submits that in the Response, the respondent raises the applicant’s performance and the elimination of her position. The respondent has disclosed arguably relevant documents but the applicant argues that the disclosure is insufficient.
13The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8.
14The Tribunal orders the respondent to file with the Tribunal and deliver to the applicant, within seven days of the date of this Interim Decision, the documents listed in the RFOP or written submissions as to why the documents should not or cannot be delivered and filed.
15The Tribunal will hear oral submissions on any outstanding production issues as a preliminary matter at the hearing.
order
16The Tribunal orders as follows:
Within seven days of the date of this Interim Decision, the respondent shall file with the Tribunal and deliver to the applicant particulars regarding the expected testimony of Ewa Glinski, Ron Nascimento, Nick Panettieri, and Chris Macmorine.
Within seven days of the date of this Interim Decision, the respondent shall file with the Tribunal and deliver to the applicant the documents listed in the RFOP or written submissions as to why the documents should not or cannot be delivered and filed.
The Tribunal will hear oral submissions on the request to amend the application as a preliminary matter at the hearing. The respondent may file written submissions, prior to the hearing, on the request to amend.
Dated at Toronto, this 28th day of October, 2016.
“Signed by”
Josée Bouchard
Vice-chair