Lovery v. Toronto Hydro-Electric System Limited, 2016 HRTO 150

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Lovery Applicant

-and-

Toronto Hydro-Electric System Limited Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: February 2, 2016 Citation: 2016 HRTO 150 Indexed as: Lovery v. Toronto Hydro-Electric System Limited

WRITTEN SUBMISSIONS

Lisa Lovery, Applicant Aida Abraha, Counsel

Toronto Hydro-Electric System Limited, Respondent Sonia Regenbogen, Counsel

1This is an Application filed on March 11, 2015 alleging discrimination with respect to employment because of disability, sex and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By Interim Decision dated December 14, 2015 (2015 HRTO 1680), the applicant was granted leave to amend her Application to also allege discrimination because of race and ethnic origin and to raise further allegations of reprisal.

2The purpose of this Interim Decision is to address the applicant’s Request for Order dated January 13, 2016 seeking further production of documents and information from the respondent. The respondent filed its Response to Request for Order on January 27, 2016. The applicant was afforded a right to file reply submissions, which she did on February 1, 2016.

3For ease of reference, I will use the numbering system employed by the applicant in her reply submissions. For some items, the applicant’s reply indicates that they have been satisfied in the intervening period. I will not refer to any items where the respondent has satisfied the applicant’s requests or where the respondent has indicated that there are no further documents responsive to the applicant’s request.

4In Item #2, the applicant requests a copy of the respondent’s short-term disability policy including the definition of “total disability”. The respondent has provided a copy of its short-term disability policy, which does not include a definition of “total disability”. The respondent states that the definition of “total disability” it uses is the definition of “major total illness / long term illness” which is defined in the Key Performance Indicator (KPI) Analysis – Attendance Document, which it also has disclosed. The applicant takes the position that this is not sufficient.

5It is not clear to me why the applicant takes the position that the definition from the KPI Analysis – Attendance Document does not fully respond to her request. This is the definition that the respondent states it uses for the purpose of its short-term disability policy. Any further clarification required by the applicant is a matter for cross-examination at the hearing. This request is deemed satisfied.

6In Item #3, the applicant requests a copy of the respondent’s Accommodation Policy and Procedure, and in particular its policy on home-based accommodation. The applicant also requests the number of home-based accommodations approved in 2013, 2014 and 2015 as well as documentation and the rationale surrounding the home-based accommodation for a Caucasian male supervisor in December 2014.

7The respondent states that it does not have an accommodation policy or procedure. It also states that it does not maintain statistics related to home-based work accommodation or other accommodation afforded to employees. Further, it states that without the name of the Caucasian male supervisor, it is unaware of the individual referenced and is unable to respond to this request.

8In reply, the applicant states that accommodations are recorded in an employee’s PKL reports and information could be extracted from this source. The applicant also provided the name and position of the Caucasian male supervisor.

9One of the primary issues in this case relates to the denial of a “work from home” accommodation to the applicant and the requirement for her to return to modified work at the workplace. The applicant takes the position that she experienced discrimination because of her gender, disability, race and ethnic origin in relation to this action by the respondent, and in her Application references (though not by name) this Caucasian male supervisor who was granted a “work from home” accommodation in December 2014 at or about the same time as it was denied to her.

10I appreciate the respondent’s position that these decisions are made on a case-by-case basis depending on the nature of the specific medical condition and medically supported restrictions. However, in order for this Tribunal to assess the applicant’s allegation of discrimination and in order for the applicant to fairly be able to argue discrimination, potentially comparative evidence of this nature needs to be disclosed. I appreciate that disclosure of this male employee’s medical information raises a privacy and confidentiality issue. However, in my view, the privacy and confidentiality concerns can be appropriately addressed by redacting this employee’s name from the documents, by not using this employee’s name in any public decisions (as I have not in this Interim Decision), and through the protection afforded under Rule 3.3 of the Tribunal’s Rules that documents disclosed pursuant to the Rules cannot be used for any purpose other than for the proceeding before this Tribunal. Accordingly, I hereby grant the applicant’s request and order the respondent to disclose the Parklane Notes from its Occupational Health file in relation to this individual and his absence from work and/or accommodations leading up to and including December 2014 as well as any medical notes or records provided by this individual to the respondent for the purpose of the accommodation of his disability-related needs.

11The respondent’s Occupational Health department uses a computer data system called Parklane to record medical records and in-person or telephone discussions with an employee and her or his medical practitioners. I am familiar with this system from other cases. It is my understanding that this system is searchable. From my review of the Parklane notes for the applicant which have been filed with the Tribunal, it appears that the term “home accommodation” is used to refer to situations where an employee is accommodated by working from home. It also appears that the term “home-based accommodation” also may be used by the respondent’s Occupational Health department. It seems to me that the respondent should be capable of conducting a search of its Parklane system using the terms “home accommodation” and “home-based accommodation” to identify the number of employees who were granted accommodation by being allowed to work from home in 2013, 2014 and 2015. I have the authority to require such a search pursuant to Rule 1.7(p) of this Tribunal’s Rules, and I so order.

12With regard to Items #4 and #5, the respondent has produced the documents requested with the exception of documents over which it asserts privilege. The applicant requests an order requiring the respondent to list the nature and dates of documents over which it claims privilege. This is not required under the Tribunal’s Rules. The respondent has stated that it has produced all documents requested by the applicant except where the person is corresponding with legal counsel. In my view, that is sufficient to ground the assertion of privilege. These requests are denied.

13In Item #6, the applicant requests a copy of all documents in her Human Resources personnel file. The respondent states that it has produced the applicant’s entire Human Resources files. It notes that the performance reviews referenced in the applicant’s Request for Order are not part of the paper file, but only reside in an electronic file on-line to which the applicant has access. In reply, the applicant states that she is currently on medical leave and so is unable to access her performance reviews. In the circumstances, the applicant’s request is granted and the respondent is ordered to produce the applicant’s 2013, 2014 and 2015 Year-End Performance Contracts with Leader Year-End Comments / Feedback as well as her 2014 Mid-Year Review with Leader Comments / Feedback.

14In Item #10, the applicant requests copies of all internal reports and statistical information prepared in connection with the respondent’s 2014 Corporate Responsibility Report. The respondent states that, in response to this request, it already has produced a chart with statistics related to the breakdown of employees by gender for both 2014 and 2015 by division and occupational category. The respondent takes the position that it is not required to provide the entire internal report that was relied upon in preparing the 2014 Corporate Responsibility Report and that the request is vague and overly broad. In reply, the applicant specifically requests all statistical data collected and internal reports related to the following information provided in the 2014 Corporate Responsibility Report at pp. 39-43: (1) breakdown of employees per job category according to gender and visible minority groups (senior management and supervisor); (2) recruitment selection process; and (3) employee turnover. The applicant submits that the statistics provided by the respondent do not provide any information as to how the information was collected, the source of the data, or background information.

15I agree with the respondent that this request is overly broad. It also is my view that the information sought is of little probative value to the issues to be determined in this proceeding. The allegation of gender, race and ethnic origin discrimination in the original Application primarily relates to the denial of “work from home” accommodation to the applicant in contrast to such accommodation that is alleged to have been provided to a Caucasian male in similar circumstances. The information sought in Item #10 is of little if any relevance to determining this issue. Another allegation of gender, race and ethnic origin discrimination added as part of the amendment relates to a job competition where the applicant was screened out and not offered an interview. The determination of this allegation will depend upon an assessment of the comparative qualifications of the candidates who were granted an interview. Once again, the information sought in Item #10 is of little if any relevance.

16I am aware that in her amendment request, the applicant purported to raise an allegation of wider systemic gender bias in the hiring and promotion of women at the respondent, particularly in senior management positions. In order to ground an application under the Code, an applicant must assert an alleged violation of her rights under the Code on the basis of specific factual circumstances. Quite simply, while the applicant can and has alleged that she experienced gender and racial discrimination in specific contexts, she lacks proper standing to raise broader allegations that do not directly pertain to her. While this does not mean that an applicant is unable to use systemic evidence to support her individual claim of discrimination, the systemic evidence sought to be relied upon must be arguably relevant to some specific alleged infringement of her own individual rights. The request made in Item #10 is denied.

17In Item #12, the applicant requests copies of all internal reports and statistical information regarding Engineering & Investment Planning Supervisor conference attendance (including travel) and course approvals, by gender. The respondent states that it does not track the conference attendance of employees, and that the information requested does not exist in a document that can be produced. In reply, the applicant submits that conference and course requests require Executive Vice-President approval and that there is a department budget item for these corporate expenses. As a result, she submits that this information is tracked and should be readily available to the respondent.

18This request relates to an amendment granted to the Application whereby the applicant alleges that she requested approval to attend a free, one-day event in Toronto on August 18, 2015 but had not received a response from her manager by September 18, 2015. She contrasts this with other male employees in her department who have been granted permission to attend out-of-province and out-of-country events. The respondent states that the applicant’s original request was to attend this event with her team leads, which is supported by an e-mail from the applicant dated August 18, 2015. The manager acknowledges a delay in responding, but states that approval was granted for the applicant and one member of her team to attend this event. This has not been disputed by the applicant.

19In my view, these factual circumstances do not support the broad request for information sought in Item #12. This request is denied.

20The applicant requested an extension to file her hearing materials pending the disposition of her Request for Order, and was granted an extension to February 15, 2016. In order for the applicant to be able to incorporate the materials I have ordered produced into her hearing materials and file them by February 15, the materials to be produced should be disclosed by the respondent by no later than February 8, 2016. I am concerned, however, about the Parklane notes and medical records in relation to the male Caucasian supervisor and the information from the search of the Parklane data system. If these materials cannot reasonably be produced by February 8, 2016, then the respondent shall produce all other materials I have ordered to be disclosed and shall advise the Tribunal and the applicant as to when it expects to be in a position to disclose the remaining materials. The applicant shall still file her hearing materials by February 15, 2016, but may file any supplementary materials relating to or arising from any later disclosure by the respondent within a reasonable period of time.

ORDER

21For all of the foregoing reasons, I hereby make the following order:

a. By no later than February 8, 2016, the respondent shall disclose to the applicant

i. The Parklane Notes from its Occupational Health file in relation to the male Caucasian supervisor and his absence from work and/or accommodations leading up to and including December 2014 as well as any medical notes or records provided by this individual to the respondent for the purpose of the accommodation of his disability-related needs,

ii. The results of a search of its Parklane system using the terms “home accommodation” and “home-based accommodation” to identify the number of employees who were granted accommodation by being allowed to work from home in 2013, 2014 and 2015, and

iii. The applicant’s 2013, 2014 and 2015 Year-End Performance Contracts with Leader Year-End Comments / Feedback as well as her 2014 Mid-Year Review with Leader Comments / Feedback.