Davidson v. Oasis Esthetique Distribution Inc., 2016 HRTO 1635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marianne Davidson Applicant

-and-

Oasis Esthetique Distribution Inc., Dr. Hauschka Canada and Andreas Ernst Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: December 20, 2016 Citation: 2016 HRTO 1635 Indexed as: Davidson v. Oasis Esthetique Distribution Inc.

WRITTEN SUBMISSIONS

Marianne Davidson, Applicant Gerardus Heddema, Counsel

Oasis Esthetique Distribution Inc., Dr. Hauschka Canada and Andreas Ernst, Respondents Brian Gottheil, Counsel

Introduction

1This Interim Decision addresses the applicant’s Request for production.

2In her Application, the applicant alleged that she was discriminated against because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The applicant filed a Request for production in which she requested that the respondents produce:

i. any outstanding documents they created, and in particular any documents they shared with the Applicant, regarding any alleged issues of her job performance;

ii. all documentation regarding their corporate Progressive Employee Discipline Policy/System;

iii. all documents created regarding any remedial employment measures they discussed with and secured from the Applicant, in response to the allegation(s) of failure to perform the duties of her job to the satisfaction of the respondents; and

iv. all documents, including the contents of all relevant computer server tracking programs and audit trails, upon which the respondents intend to rely, with respect to the assertion that they never received the Applicant's notification of pregnancy. (This request includes, but is not limited to, any relevant documents to and from third parties who may provide the respondents with computer, internet and/or server management and/or data storage services).

4The applicant submits that since the respondents take the position that the applicant was dismissed from their employment due to issues of job performance, any documents provided to her about her work performance and remedial measures as a result of poor performance; as well as documents about the corporate progressive discipline procedures are arguably relevant to the issues to be determined in the Application.

5The applicant further submits that the respondent’s proof that they did not receive any notice of her pregnancy is relevant to the issue to be determined in this Application.

6The respondents submit that they have already submitted all arguably relevant documents with respect to the applicant’s job performance. They have no formal employee discipline policy or system for which they would have relevant documents that they could disclose.

7The documents that the respondents have filed with the Tribunal include a document made following an inquiry into whether emails that were sent to respondents could be recovered.

ANALYSIS

8At 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”). It is the requesting party that has 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 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.

9It would appear that the respondents have disclosed all the documents they have in their possession that are relevant to the issues to be determined in this Application.

10Due to technical issues, the respondents are not able to retrieve emails that they received prior to November 3, 2015. However, the applicant will have opportunity to question the respondents’ witness as to whether they received the documents she alleges she sent.

ORDER

14For the reasons set out above, the applicant’s production request is denied.