Kennedy v. Cintas Canada Ltd., 2016 HRTO 274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Megan Kennedy Applicant

-and-

Cintas Canada Ltd. and Jason Bedford Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: March 1, 2016 Citation: 2016 HRTO 274 Indexed as: Kennedy v. Cintas Canada Ltd.

WRITTEN SUBMISSIONS

Megan Kennedy, Applicant Sarah Vokey, Counsel

Cintas Canada Ltd., Respondent Jonathan Dye, Counsel

Jason Bedford, Respondent David Levangie, Counsel

Introduction

1This Application, filed on July 2, 2015, alleges discrimination with respect to employment on the basis of sex and sexual solicitation or advances.

2This Interim Decision addresses the applicant’s request for production of documents from the respondents ahead of the hearing scheduled for April 13 and 14, 2016 in London.

3The applicant alleges in this Application that the personal respondent sexually harassed her by, among other things, sending her suggestive text messages, talking to her suggestively and showing her sexually suggestive photographs. The personal respondent denies the allegations.

4The applicant and another employee complained to the corporate respondent. Upon receiving the complaint, the corporate respondent hired an external investigator to investigate the allegations.

5The September 21, 2015 Notice of Hearing for the rescheduled hearing advised the parties that arguably relevant documents were to be filed by October 13, 2015. The personal respondent filed his on that date. The Tribunal has no Form 23 Statement of Delivery evidencing delivery of arguably relevant documents to the other parties by the corporate respondent, but the applicant states the corporate respondent delivered its arguably relevant documents on December 8, 2015.

6The applicant filed a Form 10 Request for an Order During Proceedings on November 13, 2015 (“the first RFOP”) for document production from the personal respondent, and filed another RFOP for document production from both respondents on January 25, 2016 (“the second RFOP”).

7The personal respondent filed two Form 11 Responses to a Request for an Order on November 27, 2015 and February 5, 2016 (the “personal respondent’s first response” and the “personal respondent’s second response”, respectively). The corporate respondent filed its response on February 4, 2016.

Production Requests

8The applicant in her first and second RFOP’s asks for the following from the personal respondent:

a. A copy of all Records of Employment (“ROE”) from the corporate respondent, specifically including ROE #W38840518;

b. All text messages between the personal respondent and the applicant;

c. An unredacted copy of the external investigator’s, MacKenzie Lake, letter to the applicant, dated March 26, 2015 (“the investigation report”); and

d. Copies of all photographs to which the applicant refers in the Application, Responses and Reply.

9The applicant requests the following from the corporate respondent:

a. An unredacted copy of the investigation report;

b. A copy of all of the corporate respondent’s internal correspondence (that does not include counsel) that relates to the subject matter of the allegations and investigation, including but not limited to, correspondence between employees, and correspondence with the investigator, the personal respondent and the applicant;

c. Any settlement agreement entered into with the respondent;

d. Its Code of Conduct referred to at Tabs 7 & 10 of its arguably relevant documents;

e. Its Partner Reference Guide referred to at Tab 9 of its arguably relevant documents; and

f. Its corporate policies #204 and #C60 referred to at Tab 17 of its arguably relevant documents.

Legal Principles Relating to Production Requests

10The 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

ROE’s

11First with respect to the personal respondent, the applicant requests disclosure of a copy of all ROE’s, specifically including ROE #W38840518, which the personal respondent states have been provided.

12I am satisfied that the ROE’s satisfy the test of arguable relevance and that all of the ROE’s should be produced to the applicant if they have not already been produced.

Text Messages

13The applicant originally requested a copy of all text messages between the personal respondent and the applicant, a request she did not renew in her second RFOP. The personal respondent in his first response stated he did not keep copies of his text messages and although he tried to obtain them from his service provider, he was unable to do so. He further advised he did not dispute that the ones the applicant has provided are those between him and her.

14I am satisfied that the text messages meet the test of arguable relevance and they should be produced if they are available, given that the applicant’s allegations include the personal respondent’s having sent her sexually suggestive texts.

Unredacted Investigation Report

15The applicant requests from the personal respondent and from the corporate respondent an unredacted copy of the investigation report. In his responses, the personal respondent states that the redacted portions of the investigation report do not relate to the applicant’s claim and are irrelevant and prejudicial to a fair hearing of this matter, in addition to which they contain personal information relating to an individual who is not a party to this Application.

16The corporate respondent concurs that the investigation report has been redacted to the extent that it applies to complaints from another person; that the person’s information is not relevant to the Application; and that production is not appropriate given that person’s privacy interests and the fact that person is not a party to this Application.

17I note that although the corporate respondent argues that the investigation report is redacted to protect the identity of someone who is not a party to the Application, the corporate respondent nonetheless discloses this individual’s name in its Response.

18Given the existence of complaints from another individual in the investigation report, ordering disclosure of an unredacted copy of the investigation report would amount to an order to disclose “similar fact evidence”, an issue addressed in Washington v. Toronto Police Services Board, 2009 HRTO 217, in which the Tribunal acknowledged the importance of balancing the probative value and prejudicial effect of the evidence to be disclosed, within the context of human rights adjudication and values. The Tribunal states:

Probative value of similar fact evidence often comes from the similarity of the alleged similar facts to the conduct at issue in the proceeding. The more the other allegations resemble those at issue in the proceeding, the more likely it is that they will be admitted. More alleged similar acts will often increase probative value. In considering probative value, the existence of a pattern may be important circumstantial evidence that weighs in favour of a finding of discrimination. Moreover, as noted by the Tribunal in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, the Tribunal’s approach generally favours broader production.

19It is important to bear in mind that an order that the respondents produce an unredacted copy because it is arguably relevant does not mean that such information will necessarily be admissible as evidence at the hearing.

20Given the test of arguable relevance, and in balancing the issues of probative value and prejudicial effect, it is my view that the probative value of the requested unredacted investigation report in this case outweighs the prejudicial effect of it at this stage. The facts of the complaints may well be similar, are coincident in time and were investigated simultaneously.

21The investigation report should be produced in its entirety, but in order to protect wider dissemination at this point of the identity of the other person, the name and any other identifying information may be redacted.

Photographs

22The applicant requests from the personal respondent copies of all photographs to which the parties refer in the Application, Responses and Reply. The personal respondent submits he has provided all photos that are relevant and available.

23Given the applicant’s allegations, the requested photos as referred to in Application, Responses and Reply are arguably relevant and should be produced if they have not already been produced.

Corporate Respondent’s Internal Correspondence

24The applicant requests from the corporate respondent copies of all internal correspondence that does not include counsel and that relates to the subject matter of the allegations and investigation, including but not limited to, correspondence between employees, and correspondence with the investigator, the personal respondent and the applicant. The corporate respondent states it has complied by providing all relevant correspondence.

25In my view this is an overly broad request. I note that it is the applicant’s burden to show arguable relevance, but she has not provided any reason why the documents that might be caught by this broad request are arguably relevant. This request is denied as being overbroad.

Settlement Agreement

26The applicant requests a copy of any settlement agreement between the corporate respondent and the personal respondent. The corporate respondent indicates it is irrelevant.

27The applicant again provides no reason why this document would be arguably relevant, and as such, the request is denied.

Code of Conduct, Partner Reference Guide and Corporate Policies #204 and C60

28The corporate respondent submits it has provided copies of same, save and except corporate policy #C60, which it submits is not relevant. No order is required with respect to the first three items. With respect to corporate policy #C60, the applicant again fails to explain the arguable relevance and her request is denied.

Order and Next Steps

29The Tribunal orders the personal respondent to produce the following documents to the applicant by no later than March 11, 2016:

a. A copy of all ROE’s issued by the corporate respondent to him, including ROE #W38840518;

b. A copy of all available text messages between him and the applicant;

c. A complete copy of the investigation report with the name and other identifying information of the other person who made a complaint redacted; and

d. A copy of all available photographs referred to in the pleadings.

30The Tribunal orders the corporate respondent to produce the following documents to the applicant by no later than March 11, 2016:

a. A complete copy of the investigation report with the name and other identifying information of the other person who made a complaint redacted.

31The deadline for the parties to file with the Tribunal their hearing documents and witness statements is extended to March 23, 2016.