Adrienne O’Quinn v. Ontario (Transportation), 2016 HRTO 477

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrienne O’Quinn Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation, Steven Spadafora and Allan Cole Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: April 14, 2016 Citation: 2016 HRTO 477 Indexed as: O’Quinn v. Ontario (Transportation)

WRITTEN SUBMISSIONS

Adrienne O’Quinn, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Transportation, Respondent Susan Munn, Counsel

Steven Spadafora and Allan Cole, Respondents Matt Mulholland, Counsel

Introduction

1This Interim Decision addresses a production request made by the applicant; the request made by the applicant regarding witness testimony; and provides directions to the parties.

2The applicant alleges that the respondents discriminated against her in her employment contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). She alleges she experienced discrimination and harassment while she was an employee of the Ministry and that she experienced reprisal in a job competition.

3The Application is scheduled to be heard on May 18 and 19, 2016 in Toronto.

PRODUCTION REQUEST

4In her Request for Order During Proceedings (“RFOP”), the applicant requested production of the following:

a. Her interview results from January 20, 2015.

b. All interview results of those employees who are newly hired.

c. Flashdrive with her practicum component of the interview that states she handed to Steven Spadafora.

d. Performance reviews of new operators from March 2014.

e. Email send to Steven Spadafora in March 2014 from another employee regarding the applicant’s performance review.

f. Documents to support reason why applicant is not shortlisted to return to work.

5The applicant states that she needs these documents to prove that she experienced reprisal when she was not called back to work or given a position in January 2014 is a form of reprisal by the respondents.

6The 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.

7The issues to be determined in this Application are whether the applicant experienced discrimination and harassment on the basis of her sex and age when she was an employee of the Ministry and whether she experienced reprisal when she was unsuccessful in applying for a job in January 2015.

Her interview results from January 20, 2015

8The respondents oppose the applicant’s request. The Ministry submits that it has produced the applicant’s ranking in this job competition. The respondents take the position that there is no nexus between the interview questions and answers, and the issues to be determined in the Application. The applicant has not particularized any issues with the questions or the answers she gave. The Ministry also takes the position that it would be prejudiced if the questions and answer keys were disclosed. A number of the questions are standard for any job completion so to provide these to the applicant would put her at an unfair advantage over others if she were to apply for another job and would prejudice the Ministry’s ability to hold a fair competition.

9I accept that disclosing the questions and answer keys would be prejudicial to the Ministry. However, if I understand the applicant’s allegations correctly she is alleging that she was not treated fairly in this competition and the comparing her results to those who succeeded will demonstrate that unfairness.

10As a result, I find that her interview results are relevant. The Ministry is ordered to disclose any documents that break down the marks she received on the various components of the job completion if such documents are available. If necessary, the parts of these documents that could reveal the questions and answer keys will be redacted.

All interview results of those employees who are newly hired

11The applicant submits that the results of those employees who are newly hired are needed as a comparison to her results.

12I again acknowledge the Ministry’s concerns about fairness in future competitions. However, I find that the results of those who were successful in the January 2015 competition that she entered are relevant to the issues raised in the Application.

13The Ministry is ordered to disclose any documents that break down the marks received on the various components of the job completion by those who were successful in the January 2015 competition that she entered, if such documents are available. The names of these candidates shall be redacted from the documents and if necessary, the parts of these documents that could reveal the questions and answer keys will be redacted.

Flashdrive with her practicum component of the interview

14Mr. Spadafora submits that he did not receive any flashdrive. It appears that this flashdrive is not available for disclosure.

Performance reviews of new operators from March 2014

15The applicant submits that these documents are relevant as they will demonstrate that concerns about her performance were untrue and unfounded.

16The respondents submit that these documents are not relevant to the facts and issues to be determined in this Application. The performance reviews of other employees are strictly confidential.

17I find that the performance reviews of other employees are not relevant to the issues of whether the applicant experienced harassment and discrimination or whether she experienced reprisal in the January 2015 job competition.

Email send to Steven Spadafora in March 2014 from another employee regarding the applicant’s performance review

18Mr. Spadofora has confirmed that he has done a search to see if such an email was sent and he has been unable to locate such an email.

19The individual respondents have disclosed a similar email that was exchanged between them on March 24, 2014.

Documents to support reason why applicant is not shortlisted to return to work

20The applicant has not outlined any particulars with respect to any alleged discrimination in the respondents’ failure to shortlist her for return to work. As such, these documents, if they exist, would not be relevant.

Request by the Applicant that Two Witnesses Provide Evidence by Phone

Dr. Tecimer

21The applicant has requested the her doctor, Dr. Tecimer, and a person with the initials A. M, who appears to be a former employee of the Ministry, be allowed to present their evidence over the phone rather than attending at the hearing in person. She states that Dr. Tecimer has a very busy medical practice and that A.M. is unable to leave his home due to disability.

22The applicant has provided a very brief witness statement for Dr. Tecimer. Rule 17 of the Tribunal’s Rules of Practice, requires the applicant to provide a written report from Dr. Tecimer or a full summary of the evidence Dr. Tecimer will provide as well as her curriculum vitae.

23In order to fulfill this disclosure obligation, the applicant must provide a medical report prepared by Dr. Tecimer which addresses her allegations with respect to the impact the alleged discrimination and harassment had on the applicant’s health during the period of time from May 2013 to May 2015. In the alternative, the applicant will disclose Dr. Tecimer’s medical charts and notes from her patient file for the period of time from May 2013 to May 2015. Dr. Tecimer’s curriculum vitae must also be disclosed.

24Once these documents are disclosed, the Tribunal will make an order with respect to the applicant’s request to have Dr. Tecimer provide her evidence by telephone.

A.M.

25The witness statement provided for A.M. does not outline any details of evidence that he will provide that relates to the allegations contained in the Application. The applicant shall provide another witness statement for A.M. that details his knowledge and the evidence he will provide with respect to the allegations detailed in the Application.

26Once this new witness statement for A.M. is disclosed, the Tribunal will make an order with respect to the applicant’s request to have A.M. provide his evidence by telephone

ORDER

27For the reasons set out above, the Tribunal makes the following Orders:

i. By May 4, 2016, the Ministry will disclose to the applicant any documents that break down the marks she received on the various components of the job completion if such documents are available. If necessary, the parts of these documents that could reveal the questions and answer keys will be redacted.

ii. By May 4, 2016, the Ministry will disclose to the Applicant any documents that break down the marks received on the various components of the job completion by those who were successful in the January 2015 competition that she entered, if such documents are available. The names of these candidates shall be redacted from the documents and if necessary, the parts of these documents that could reveal the questions and answer keys will be redacted.

iii. By May 4, 2016, the applicant will serve on the respondents and file with the Tribunal a medical report prepared by Dr. Tecimer which addresses her allegations with respect to the impact the alleged discrimination and harassment had on the applicant’s health during the period of time from May 2013 to May 2015. In the alternative, the applicant will disclose to the respondents Dr. Tecimer’s medical charts and notes from her patient file for the period of time from May 2013 to May 2015. Dr. Tecimer’s curriculum vitae must also be disclosed to the respondents.

iv. By May 4, 2016, the applicant will serve on the respondents and file with the Tribunal another witness statement for A.M. that details his knowledge and the evidence he will provide with respect to the allegations detailed in the Application.

28Should the parties decide that they wish to rely on any of the documents that are ordered to be disclosed above, those documents shall be served on eachother and filed with the Tribunal, on or before May 10, 2016.

29The Registrar shall canvass the parties about their availability for a one hour Case Management Conference Call on May 11, 12 or 13, 2016.