HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Celia Brooks
Applicant
-and-
LifeLabs LP and Carol Ford
Respondents
-and-
Dynacare
Affected Party
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Brooks v. LifeLabs LP
WRITTEN SUBMISSIONS
Celia Brooks, Applicant
Ayoob Khan, Counsel
1This is an Application dated January 29, 2015, alleging discrimination by the respondents LifeLabs LP and Carol Ford with respect to contracts and employment because of race, colour, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In brief, the applicant was employed by the respondent company commencing in June 2000 until the termination of her employment on July 22, 2014. Following the termination of her employment, the applicant signed a Full and Final Release in favour of the respondent company releasing it from all claims against the respondent company and its employees, including any claims arising out of or in any way related to her employment with the respondent company. There is no dispute between the parties that this Release bars the applicant from alleging a violation of the Code by, or seeking any remedy from, the respondents in relation to events that occurred prior to the termination of the applicant’s employment. There is a dispute between the parties regarding the extent to which, if at all, the applicant can rely on events prior to the termination of her employment as evidence in support of an allegation of discrimination by the respondents concerning events that occurred subsequent to the signing of the Release.
3The principal issue raised in this proceeding relates to employment sought by the applicant with a third-party employer, Dynacare, following the termination of her employment. The applicant states that she applied for a position at Dynacare and was interviewed for this position on October 22, 2014. The applicant states that she was contacted by Dynacare three days later and, from this conversation, understood that she had been offered the position subject to a reference check. The applicant states that she provided Dynacare with the names of two references. The applicant states that on October 28, 2014, she received a further call from Dynacare advising that a reference check had been completed with one of her references, but that the other person given as a reference had not returned the call. The applicant states that she then gave the name of her former manager at the respondent company, Carol Ford, as a reference.
4The applicant states that she followed up with Dynacare a few days later, and was told to call back the following week. The applicant states that when she did so, she was told, “Celia I am sorry based on what Carol your last manager told us about you, we have taken the job back from you and given to another”. The applicant states that she asked if she could re-apply, and was told “yes, but now that we have this information on you we wouldn't hire you and I am the head person that all résumés go through, so you wouldn't get another interview”. The applicant has identified the person she spoke to at Dynacare as Ramona Gogoasa.
5The allegation raised as against the respondents in this proceeding is that the applicant’s race, colour, place of origin and/or ethnic origin was a factor in what the applicant believes was a negative and unfair reference given by Ms. Ford as her former manager and which prevented the applicant from obtaining employment with Dynacare.
6A teleconference hearing in this matter was held on November 24, 2015, to address the preliminary issues of the impact of the Full and Final Release on the allegations raised in the Application and to assess whether the applicant’s allegations have a reasonable prospect of success. At the teleconference hearing, I noted that much in this case would turn on the evidence of the Dynacare representative who spoke with Ms. Ford.
7Accordingly, by Case Assessment Direction dated November 24, 2015, I directed the applicant to request from Dynacare a statement from the person who took the reference from Carol Ford, setting out in her own words what she was told by Ms. Ford regarding the applicant, together with a copy of any documents, notes or records of this discussion. I indicated that, if Dynacare was not willing to do this voluntarily, the applicant should serve and file a Request for Order during Proceedings (Form 10) requesting an order against Dynacare pursuant to Rules 1.7(p) and (q) to provide such statement and documents, on notice to Dynacare and the respondents.
8By letter dated November 30, 2015, counsel for the applicant wrote to Ms. Gogoasa at Dynacare to request the details of what Ms. Ford told Ms. Gogoasa about the applicant in Ms. Gogoasa’s own words, together with copies of any documents or records she may have of this discussion.
9Applicant counsel received a response from Dynacare by letter dated December 9, 2015, in which Dynacare denied that the applicant had ever been offered a position and stated that her former employer had confirmed her employment position and tenure and had not said anything discriminatory or negative. Dynacare did not provide a statement from Ms. Gogoasa in her own words, nor did Dynacare provide a copy of any documents or records it may have regarding Ms. Gogoasa’s discussion with Ms. Ford.
10As a result, the applicant filed a Request for Order with this Tribunal seeking an order compelling Dynacare to produce and deliver a statement from Ms. Gogoasa and any notes or records she may have of her discussions regarding the applicant. This Request for Order was served on the Dynacare representative who had written the December 9, 2015 letter by fax on December 30, 2015. The 14-day time period for Dynacare to respond to this Request for Order expired on January 13, 2016. No Response has been filed by Dynacare.
11Pursuant to Rule 1.7(p), this Tribunal has the power to require a party or “other person” to produce any document, information or thing. In addition, pursuant to Rule 1.7(q), this Tribunal has the power, on the request of a party, to require another party or “other person” to provide a report, statement, or oral or affidavit evidence. These provisions of the Tribunal’s Rules empower me to make the order requested by the applicant as against Dynacare.
12Accordingly, given the relevance and materiality of the information sought by the applicant from Dynacare to the principal issue raised in this proceeding, I am hereby ordering Dynacare to do the following:
a. Provide a statement from Ramona Gogoasa in her own words, and signed by Ms. Gogoasa, regarding her discussions with or regarding the applicant about a potential position with Dynacare during the period from October 22, 2014 to in or about early November 2014, including any discussion she may have had with Carol Ford or any other person at LifeLabs LP regarding the applicant; and
b. Produce any documents or records of any nature, including typewritten or handwritten notes, regarding any such discussions with or regarding the applicant.
13The above material is to be served on the parties to this proceeding at the addresses shown on the cover letter accompanying this Interim Decision and then filed with the Tribunal together with a Statement of Delivery (Form 23) confirming service on the parties, by no later than February 22, 2016.
14Following receipt of this material from Dynacare, the applicant shall have a further 14 calendar days to make any submissions in writing regarding this material and its impact on the issues addressed at the teleconference hearing. The respondents shall have a further 14 calendar days to serve and file any written submissions in response, and the applicant shall then have 7 calendar days to serve and file any written submissions in reply.
ORDER
15For the foregoing reasons, I hereby make the following order:
a. By no later than Monday, February 22, 2016, Dynacare shall serve on all parties to this proceeding and file with the Tribunal the following material:
i. a statement from Ramona Gogoasa in her own words, and signed by Ms. Gogoasa, regarding her discussions with or regarding the applicant about a potential position with Dynacare during the period from October 22, 2014 to in or about early November 2014, including any discussion she may have had with Carol Ford or any other person at LifeLabs LP regarding the applicant, and
ii. any documents or records of any nature, including typewritten or handwritten notes, regarding any such discussions with or regarding the applicant; and
b. Following receipt of this material from Dynacare,
i. the applicant shall have a further 14 calendar days to serve on the respondents and file with the Tribunal any submissions in writing regarding this material and its impact on the issues addressed at the teleconference hearing,
ii. the respondents shall have a further 14 calendar days to serve and file any written submissions in response, and
iii. the applicant shall then have 7 calendar days to serve and file any written submissions in reply.
Dated at Toronto, this 8th day of February, 2016.
“Signed by”
Mark Hart
Vice-chair