N.B. by her Litigation Guardian, C.B. v. Northend Body Shop, 2016 HRTO 1408

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.B. by her Litigation Guardian, C.B. Applicant

-and-

Northend Body Shop Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: November 1, 2016 Citation: 2016 HRTO 1408 Indexed as: N.B. by her Litigation Guardian, C.B. v. Northend Body Shop

WRITTEN SUBMISSIONS

N.B. by her Litigation Guardian, C.B., Applicant D. Beth Walden, Counsel

Northend Body Shop, Respondent Farid Arbi, Paralegal

Introduction

1This Application, filed on September 18, 2015, alleges discrimination with respect to employment on the basis of sex.

2This Interim Decision addresses the respondent’s request for the applicant to have a Litigation Guardian and for the production of documents.

3The applicant alleges she was not hired by the respondent for a co-op placement because of her sex.

4The respondent filed a Form 10 Request for an Order During Proceedings on October 1, 2016 stating that the applicant requires a Litigation Guardian because of her minor status. The respondent further requested particulars, the production of documents and an extension of time, as set out below.

5The applicant filed her Form 11 Response to a Request for an Order on October 17, 2016.

litigation guardian

6In response to the respondent’s request that a Litigation Guardian be appointed for the applicant, a Form 4A Litigation Guardian on Behalf of a Minor, was filed on October 254, 2016. No Tribunal order is required.

production requests

7The respondent requests the following from the applicant:

a. complete highschool academic records; b. complete highschool attendance records; c. complete health record before and after September 16, 2015.

8The respondent states that the requested information is necessary in order that the respondent has complete knowledge because the applicant’s allegations are very serious.

9The applicant filed her Form 11 Response to a Request for an Order and argues that the requested information is not arguably relevant.

10With respect to the applicant’s entire academic record, the applicant argues the request is overly broad, and the Applicant’s entire academic record is not arguably relevant to the issue before the Tribunal, which is whether the respondent declined the applicant a co-op position working as a mechanic based on her sex.

11The applicant submits the Respondent was given the information that was relevant to the applicant’s qualifications for the co-op position on referral from her highschool. In addition, she submits that the co-op program is intended to focus on the needs of the student: to provide experience in areas of employment that interest the student, and is not for the sole benefit of the employer.

12The records are not arguably relevant to the matter before the Tribunal: whether the Respondent refused to accept the Applicant as a mechanical co-op student in whole or in part because of her sex/gender.

13With respect to the respondent’s request for the production of all her health records, the applicant submits the request is overly broad. In addition, she argues the health records are not arguably relevant to the matters before the Tribunal because although she stated in her Application that she was upset about what occurred, and she described how it impacted her, she did not allege that the incident had an ongoing impact on her physical or mental health to the degree that it necessitated medical intervention. The Applicant submits she will testify about the impact the denial of the co-op placement had on her, and the Respondent can cross examine her.

Legal principles relating to production requests

14The test for document production is whether the documents sought are “arguably relevant” to the issues in dispute in the proceeding. At 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 bears 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. A nexus may be established if the sought-after information goes 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.

Submissions and Analysis

School Records

15First, with respect to the school records, the only arguably relevant school records in the Tribunal’s view are those that the respondent had at the time it conducted the interview with the applicant, and those records should be produced. The respondent provides no cogent reason why the balance of the records is arguably relevant.

Attendance Records

16If the applicant’s attendance records formed part of what the respondent had in its possession when it conducted the interview of the applicant, then they are arguably relevant and shall be produced. Otherwise, the attendance records are not arguably relevant, and the respondent provides no cogent reason why they are arguably relevant.

Medical Records

17In light of the applicant’s submissions that she is not arguing that she necessitated medical intervention as a result of the events in this Application, the applicant’s medical records are not arguably relevant and the applicant need not produce them. The respondent provides no cogent reason why they are arguably relevant.

Particulars

18The respondent requests that the applicant disclose how many co-op placements were scheduled. The applicant provides the answer to this inquiry in her Form 11, and no order from the Tribunal is required.

19The respondent also asks that it be permitted to contact the co-op program at the highschool directly with the applicant’s consent. The applicant argues she need not provide such consent, and she intends to call a witness from the co-op program.

20The respondent’s request to be permitted to contact the co-op program directly is denied because of the applicant’s indication she intends to call a person from the co-op program to testify. The Tribunal notes that the applicant filed her witness statement with the Tribunal, which did not include someone from the co-op course. The applicant shall provide in accordance with the timelines set out in paragraph 23 an updated list of witnesses and witness statements, which will set out the anticipated evidence of her witnesses, including the person from the co-op program. If the applicant does this, there is no necessity for the respondent to be permitted to contact the co-op program directly. If she does not, the respondent may renew its request.

Extension of Time

21The respondent seeks additional time to prepare for a hearing in this matter because it retained a new representative in light of the health difficulties of the respondent’s former representative. It does not set out any details of the additional time sought, but the respondent’s representative has now been retained since at least September 30, 2016. No new hearing date has been set, so it appears there is no need for any extension of time, since the parties will have input into the hearing date. This request is denied.

order and next steps

22The respondent’s request for a complete copy of the applicant’s school, attendance and medical records is denied.

23The Tribunal orders the applicant to produce the following documents to the respondent by no later than November 21, 2016:

a. A copy of any school record the respondent had at the time of the co-op interview; b. A copy of any attendance record the respondent had at the time of the co-op interview; c. An updated witness list and witness statement that includes a person from the co-op program.

24The deadline for the parties to file with the Tribunal their hearing documents (or additional hearing documents in the case of the applicant) and witness statements is extended to December 5, 2016.

25By no later than November 21, 2016, the parties shall consult with each other and provide to the Tribunal their mutually agreeable dates in February or March, 2017 on which they are available for a one day hearing in this matter.