HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tin Trinh
Applicant
-and-
CS Wind Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Trinh v. CS Wind Canada Inc.
WRITTEN SUBMISSIONS
Tin Trinh, Applicant
Zahra Binbrek, Counsel
CS Wind Canada Inc., Respondent
Suzanne M. Porter, Counsel
1This Application is scheduled to be heard in Windsor on March 29 and 30, 2016.
2Pursuant to the Tribunal’s Rules of Procedure, and as set out in the Notice of Hearing, the parties were required to provide to one another copies of their arguably relevant documents by November 5, 2015. They were also required to provide to one another copies of the documents they intended to rely upon at the hearing (which would ordinarily be a subset of their arguably relevant documents) and witness statements by no later than February 16, 2016.
3The respondent did not comply with these disclosure obligations by February 16, 2016 and in a Case Assessment Direction dated February 23, 2016, the respondent was directed to comply by March 4, 2016.
4The respondent provided copies of the documents it intends to rely on at the hearing and witness statements to the applicant and filed them with the Tribunal on March 4, 2016.
Requests for Orders During Proceedings
Request for production
5On March 17, 2016, the applicant filed a Request for Order During Proceedings in which she sought production of documents from the respondent. The items that she is requesting that the applicant produce are:
i. Any document (notes, email, correspondence..etc.) in relation to the decision by the Respondent to deny the Applicant a wage increase and bonus that was earned in 2012 and paid in 2013, and that was earned in 2013 and paid in 2014.
ii. Any documents (notes, emails, correspondence..etc.) in relation to the Applicant’s complaint to MJ Kim (Respondent Human Resources) about a wage increase and/or bonus which would have been payable to the applicant in 2013 and 2014. This will include any documents or notes between MJ Kim and Alberto Yang and/or any other employees/representatives of the respondent.
iii. Any documents (payroll records, notes, emails, correspondence…etc.) regarding wage increases and/or bonuses earned by managers in 2012 and paid in 2013, and earned 2013 and paid in 2014. This will include the alleged performance reviews that formed the basis of these increases and an identification of who received wage increases and or bonuses during this time period and the respective amounts paid.
iv. Any written human resources policy regarding wage increases and bonuses.
6The applicant submits the above documents are relevant to her allegation that she was denied a wage increase and bonus as a result of being on maternity leave. She alleges that the denial of the wage increase and bonus is contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”).
7The applicant submits that these documents are also relevant to the determination of an appropriate remedy should the applicant be successful in this allegation.
8The following documents were identified by the Respondent as relevant in the Form 2:
i. Email exchanges from MJ Kim, IW Kwak and others that substantiate the statements in the Response
ii. CS Wind Company Policy
iii. CS Wind Human Rights Policy
9The applicant submits that she did not receive and copies of these documents except for an email between MJ Kim and the applicant dated November 20, 2013 which was disclosed by the respondent to the applicant on January 20, 2016.
10These documents were not filed with the Tribunal.
Amend Application
11The applicant seeks an order allowing her to amend her requested remedies and to add the ground of “disability” to her Application.
12The Applicant requests to amend the requested remedies to:
a. $25,000 in general damages;
b. lost wages from November 22, 2014 to January 20, 2015 at a rate of $72,000 per annum (the time period when the Applicant was unemployed); and
c. lost wages from January 21, 2015 to November 13, 2015 at the rate of $4,000 per month representing the difference in wage between her salary at CS Wind Canada Inc. and the short term contract she acquired at Prolann, an engineering firm; and
d. lost wage from November 14, 2015 to March 14, 2016 at a rate of $72,000 per annum (the time period when the Applicant was unemployed); and
e. that the Respondent prepare an internal human rights policy in accordance with the guidelines on Developing Human Rights Policies and Procedures published by the Ontario Human Rights Commission; and
f. that the Respondent hire an external expert in human rights to train its owners, manager and senior staff with respect to their obligations under the Code.
13The applicant submits that her one of her allegations is that respondent failed to accommodate her request to work ½ days in the fall of 2012 because of pregnancy-related health concerns. Under Question 5 of Form 1 “Grounds Claimed” the applicant did not tick off the box for “disability”.
14The respondent has not had an opportunity to respond to these Requests; however, given the short time until the first day of hearing, I am addressing these Requests in absence of the respondent’s submissions.
Analysis
Request for Production
15The 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. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the documents in question may prove or disprove a fact in issue in the dispute.
16I find that the documents listed in the applicant’s Request for Production and the documents that the respondent listed as relevant in its Form 2 and relevant to the issues to be determined in this Application.
17I therefore find that the respondent must bring three copies of each of the documents listed in paragraphs 5 and 8 above, and all company human resources policies to the first day of hearing on March 29, 2016.
18The parties should be prepared to make submissions on the production of these documents during the course of the hearing.
Amend Application
19Rule 1.7 c) of the Tribunal’s Rules of Procedure clearly articulates the Tribunal’s power to amend an application. The Rule states:
In order to provide for a fair, just and expedition resolution of any matter before it the Tribunal may:
c) allow any filing to be amended.
20In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
6Having considered these factors, I grant the applicant’s request to amend the Application. The applicant is not seeking to add new allegations of discrimination or add new parties. The respondent will not be prejudiced by these amendments.
ORDER
21The applicant’s request to amend the Application to add the ground of disability and to amend the remedies requested in granted.
22The respondent shall bring three copies of the following documents to the first day of hearing and the parties should be prepared to make submissions on the production and admissibility of these documents throughout the course of the hearing:
i. Any document (notes, email, correspondence..etc.) that relate to the decision by the respondent to deny the applicant a wage increase and bonus that were earned in 2013 and paid in 2014.
ii. Any documents (notes, emails, correspondence..etc.) that relate to the applicant’s complaint to MJ Kim (respondent human resources) about a wage increase and/or bonus which would have been payable to the applicant in 2014. This will include any documents or notes between MJ Kim and Alberto Yang and/or any other employees/representatives of the respondent.
iii. Any documents (payroll records, notes, emails, correspondence…etc.) regarding wage increases and/or bonuses earned by managers in 2013 and paid in 2014. This will include the alleged performance reviews that formed the basis of these increases and an identification of who received wage increases and or bonuses during this time period and the respective amounts paid.
iv. All CS Wind company human resources policies, including any policies regarding wage increases and bonuses; and human rights and accommodation policies.
v. Email exchanges from MJ Kim, IW Kwak and others that substantiate the statements in the response.
23A copy of the Tribunal’s Mediation/Adjudication Agreement is attached to this Case Assessment Direction should the parties wish to participate in this process at the hearing.
Dated at Toronto, this 22nd day of March, 2016.
“Signed By”
Laurie Letheren
Vice-chair