Edwards v. Ontario Non-Profit Housing Association, 2016 HRTO 308

Human Rights Tribunal of Ontario

Between:

Natalie Edwards Applicant

-and-

Ontario Non-Profit Housing Association Respondent

Interim Decision

Adjudicator: Sheri Price Date: March 8, 2016 Citation: 2016 HRTO 308 Indexed as: Edwards v. Ontario Non-Profit Housing Association

Appearances

Natalie Edwards, Applicant Self-represented

Ontario Non-Profit Housing Association, Respondent Reagan Ruslim, Counsel

Introduction

1This is an Application in which the applicant alleges that the respondent employer infringed her rights under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application is scheduled to be heard on March 21 and 22, 2016, in Toronto.

2This Interim Decision addresses:

a. the applicant’s Requests for the production of documents;

b. the respondent’s February 29, 2016 request for a summary hearing; and

c. other Requests for an Order during Proceeding filed by the respondent on February 29, 2016.

Production of documents

3During a conference call on February 19, 2016, the Tribunal addressed the applicant’s Requests for an Order requiring the respondent to produce the following documents:

1. Any and all documents, including notes, emails, etc., regarding the applicant’s request for accommodation in respect of the period between August 1, 2014 and December 16, 2014;

2. Any and all documents, including notes, emails, etc., in respect of the period between August 1, 2014 to February 28, 2015 relating to the respondent’s decision to terminate the applicant’s employment;

3. The consultant MNP’s report that the respondent alleges it relied upon in restructuring its organization;

4. Any and all documents, including notes, emails, etc., relating to the elimination of Ferris-Davies’ and Campbell’s jobs with the respondent and/or the effect of organizational restructuring on their jobs;

5. Confirmation of the dates upon which Ferris-Davies and Campbell retired from employment with the respondent and the dates on which their replacements, if any, were hired, including the date on which St. Louis was hired; and

6. Any and all documents, including notes, emails, etc., relating to the qualifications and interview results of the successful candidate for the “Coordinator, Member Services” position with the respondent in or around January 2015, and the corresponding documents for the applicant herself.

4The respondent does not oppose a production order being made in respect of the documents identified in paras. 1 through 5, above. Moreover, I find all of the documents described therein to be arguably relevant to one or more issues to be determined in this proceeding. Accordingly, as indicated during the February 19, 2016 conference call, to the extent it has not already done so, the respondent is hereby ordered to produce the documents identified in paras. 1 to 5, above, to the applicant as soon as possible and in any event within seven (7) days of the date of this Interim Decision.

5The only dispute with respect to the applicant’s production request by the time of the February 19, 2016 conference call was in relation to the documents in para. 6, above.

6One of the applicant’s allegations in this case is that the respondent discriminated against her because of disability and/or reprised against her by hiring a candidate other than the applicant for the “Coordinator, Member Services” position, which position replaced the applicant’s position(s) with the respondent.

7In its November 2015 submissions, the respondent opposed the applicant’s request for documents comparing her performance in the job competition for the “Coordinator, Member Services” job to that of the successful candidate on the basis that it constitutes a “fishing expedition”. The respondent submits that the applicant has not established that the documents in question have any nexus to an allegation in the Application.

8I disagree. The documents relating to the applicant’s and the successful candidate’s suitability for the “Coordinator, Member Services” position, including but not limited to their performance during the interview, is clearly relevant to an allegation in the Application.

9Accordingly, the respondent is hereby ordered to produce such documents to the applicant as soon as possible and in any event within seven (7) days of the date of this Interim Decision.

10In complying with the Tribunal’s production orders herein, the respondent is reminded that it is required to produce all documents to the applicant in its possession or control, after undertaking a diligent search of its records. I mention this because, during the conference call, the respondent indicated that it had provided the applicant with a complete copy of her personnel file and submitted that a number of the documents that have been ordered produced “would have been” in that file. However, the respondent is still required to undertake a diligent search of all records, including electronic communications, such as emails, to ensure that it is in full compliance with this order.

11During the February 19, 2016 conference call, the respondent’s counsel indicated that the interview notes from the January 16, 2015 interview are no longer available because they have been destroyed by the respondent, notwithstanding that the applicant requested copies of the notes on January 26, 2015, the respondent received the Application from the Tribunal in February 2015, and the respondent made no mention of the notes having been destroyed in November 2015, when it made submissions opposing the notes’ production on the basis of relevance.

12In the event that the respondent fails to produce the interview notes that have been ordered produced herein on the basis that they have been destroyed, the parties should be prepared at the hearing to make submissions on whether an adverse inference ought to be drawn against the respondent based on its destruction of the notes.

Request for a summary hearing

13On February 29, 2016, the respondent filed a Request for a Summary Hearing with the Tribunal. In it, the respondent submits that the Tribunal ought to hear submissions at the outset of the hearing on March 21, 2016 as to whether the Application ought to be dismissed on the basis that it has no reasonable prospect of success.

14The Tribunal’s Practice Direction on Summary Hearing Requests states that Requests for a summary hearing that are filed after a hearing on the merits has already been scheduled, as this one was, will rarely be granted.

15In addition, having reviewed the respondent’s Request and the allegations in the Application, I am not persuaded that this is an appropriate case for a summary hearing.

16The Request for a Summary Hearing is therefore denied. The March 21 and 22, 2016 hearing on the merits of the Application will proceed as scheduled.

17I draw the parties’ attention to the fact that, pursuant to the Tribunal’s Rules of Procedure, where the Tribunal denies a request for a summary hearing, reasons for the denial are not required to be provided and are not provided in this case.

Objection to applicant’s witnesses/evidence

18The respondent