Dawne Thompson v. Home Instead Senior Care, 2016 HRTO 706

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dawne Thompson

Applicant

-and-

Home Instead Senior Care

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: May 24, 2016

Citation: 2016 HRTO 706

Indexed as: Thompson v. Home Instead Senior Care

APPEARANCES

Dawne Thompson, Applicant

Roger Love, Counsel

Home Instead Senior Care, Respondent

Chantel Goldsmith, Counsel

1The applicant alleges that she experienced discrimination in employment on the basis of sex including sexual harassment. She alleges that one of the respondent’s clients sexually harassed or assaulted her while she was providing services as a personal support worker in the client’s home.

2For the purposes of this decision and any subsequent decisions issued on this Application, the client who is alleged to have harassed or assaulted the applicant will be referred to as “AB”.

3The Tribunal directed the Registrar to schedule a summary hearing teleconference in order to determine the issue of whether the applicant had a reasonable prospect of demonstrating that the respondent discriminated against her. The Tribunal invited the parties to include submissions on whether the applicant has a reasonable prospect of demonstrating that the respondent could be found to be liable for a breach of subsections 7(2) and (3) of the Code which state:

Sexual harassment

Harassment because of sex in workplaces

(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.

Sexual solicitation by a person in position to confer benefit, etc.

(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

4The applicant also filed a Request for Order During Proceeding (“Request”) that the Tribunal order the respondent to disclose to the applicant the following documents:

a. AB’s client log / client binder;

b. Any complaints filed with Home Instead regarding AB;

c. Any and all notes, documents or recordings from formal or informal investigations into AB’s conduct;

d. Any and all documentation in possession of the respondent which express concerns regarding AB’s conduct towards Home Instead employees. This includes, but is not limited to, documents created by the respondent, the respondent’s employees, relatives of AB, and current and former employees of AB;

e. Any other information in the possession of the respondent regarding AB’s conduct that can reasonably be connected an allegation of sexual harassment.

5A summary hearing was held on April 25, 2016 during which time I heard submissions from the applicant and the respondent.

Reasonable Prospect of Success

6The applicant submits that the Application must be considered under subsection 5(1) of the Code as well as subsections 7(2) and (3). Subsection 5(1) reads:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Harassment in employment

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

7The applicant submits that the Tribunal has interpreted section 5 to cover situations, like that to be addressed in this Application, where the harassment is alleged to have been committed by a person who is neither an employer nor employee. The applicant submits that section 5 could be applied in this Application to find that the respondent breached the Code when it failed to appropriately investigate and address the complaints about discrimination or harassment by AB.

8The applicant has indicated she has evidence to demonstrate this breach of the Code.

9The applicant also submits that this Application also engages section 7(3) of the Code as AB had the power to confer the benefit of the number of work hours she would be assigned. She submits that once she complained about the harassment, her hours were reduced.

10The respondent submits that its clients do not have control over the number of hours that its employees are assigned. The hours are assigned in accordance with work that is available. The respondent submits that AB did not have the power to confer or deny a benefit to the applicant.

11It is obvious that there is a dispute on the facts and legal issues that are fundamental to a determination on whether the applicant’s rights under the Code have been breached. At this point, I am not prepared to find that the applicant has no reasonable prospect of demonstrating that her rights to be free from discrimination and harassment have been breached. There are a number of legal issues that will need to be addressed in this Application and they cannot be properly determined without the benefit of a full evidentiary record. It would not be appropriate to dismiss this Application at this point.

Request for Production

12The applicant submits that all the documents she is requesting are relevant to the issues to be determined in this Application. She submits that all that is listed in her Request is needed to properly prepare witnesses for hearing and to determine if she needs to call additional witnesses. The applicant acknowledges the respondent’s concerns that the AB’s private health information may be disclosed through these documents. She submits that this private health information could be redacted from the documents if it is not relevant to the issues to be determined in the Application.

AB’s Log Book and Electronic Log

13The applicant states that there is a log book that is kept for each of the respondent’s clients. Those who are providing care to the clients make notes in this log about the client so that all information can be shared among caregivers.

14The respondent states that AB has died and that the log book was given to his family along with all of his belongings. The respondent is not aware if the family still has the log book as the family did not respond to its requests.

15Pursuant to the Code and the Tribunal’s Rules, the Tribunal has the authority and power to order the production of documents, information or things from both parties and non-parties in a proceeding before it.

16Sections 40 and 41 of the Code provide that the Tribunal shall dispose of applications by adopting procedures and practices, including alternatives to traditional adjudicative or adversarial procedures, which offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications before it.

17Section 43(1) of the Code further provides that the Tribunal may make rules governing the practice and procedure before it, and s. 43(3)(f)(i) of the Code specifically provides that the Tribunal’s rules may authorize the Tribunal to require a party to a proceeding or another person to produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

18The Tribunal has made Rules in accordance with the above provisions of the Code. Specifically, Rule 1.7(p) provides that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may require a party or other person to produce any document, information or thing.

19It is well-established that the basic principle in determining a production request is whether the requested documents or information are “arguably relevant” to the issues in dispute in the proceeding.

20In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal explained its approach at paras. 8-11:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

21The Tribunal is sensitive to privacy issues and can take steps to ensure avoid including private information that is not necessary for a clear understanding of the decision.

22The applicant’s request for production of the AB’s log book is granted. I agree with her that the information contained in the log book are arguably relevant to the issues in dispute in the proceeding.

23The respondent shall request that AB’s family provide the log book to them if it is still available. If AB’s log book is available, the respondent shall provide a copy to the applicant and file a copy with the Tribunal. Should the respondent wish to redact any private information that is not relevant to the issues to be determined in this Application, it may do so prior to disclosing the contents of the log book.

24The respondent has indicated that in addition to this log book, it kept an electronic log for each client. I find that AB’s electronic log is also arguably relevant to the issues in dispute in the proceeding and should be disclosed to the applicant and filed with the Tribunal. Should the respondent wish to redact any private information that is not relevant to the issues to be determined in this Application, it may do so prior to disclosing the electronic log to the applicant.

Other Documents Regarding any Complaints or Concerns about AB’s Conduct and Investigation into the Conduct

25The respondent’s awareness of AB’s conduct and its investigation into the conduct are at issue in this Application. Therefore, any documents, notes, recordings, etc, in addition to the logs, that the respondent is aware of and that were prepared by the respondent, its employees, AB’s family or others, with respect to AB’s conduct, shall be disclosed to the applicant and filed with the Tribunal. Again, any private information that is not relevant to the issues in dispute in the proceeding may be redacted.

Employment Contract

26I find that the nature of the employment relationship between the parties is relevant to the issues in dispute in the proceeding. The respondent shall disclose to the applicant and file with the Tribunal a copy of the applicant’s employment contract.

Contract for Service

27The issue of the extent of control AB may have had in conferring a benefit to the applicant is an issue in this Application. The respondent shall disclose to the applicant and file with the Tribunal a copy of the contract for services between the respondent and AB or his power of attorney or next of kin.

Workplace Abuse and Harassment Policy

28The respondent attached an “Employee Acknowledgement” of the Abuse Policy and two pages of the Workplace Abuse/Harassment Policy to its submissions filed for the Summary Hearing. It was not clear whether the Abuse Policy and the Workplace Abuse/Harassment Policy were two different documents and whether the respondent had filed the complete policies. I find that if they are separate policies, both these policies are relevant to the issues in dispute in the proceeding. Therefore, the respondent shall disclose to the applicant and file with the Tribunal a copy of each of these policies or a copy of the full policy, if there is just one policy on abuse and harassment in the workplace.

Employee Manual and Training Materials

29During the Summary Hearing there was some discussion about employee training conducted by the respondent and employee manuals that are given to employees. I find that the respondents training of its employees on how to handle abuse and harassment are relevant to the issues in dispute in the proceeding. Therefore, the respondent shall disclose to the applicant and file with the Tribunal a copy of the training materials that were used in training the applicant and the employee manual that was in existence at the time that the applicant was employed by the respondent.

ORDER

30Within 30 days of the date of this Interim Decision, the respondent shall disclose to the applicant and file with the Tribunal:

i. a copy of AB’s log book. The respondent may redact any private information that is not relevant to the issues to be determined in this Application. If the log book is no longer available, the respondent shall confirm this in writing to the applicant and Tribunal.

ii. a copy of AB’s electronic log. The respondent may redact any private information that is not relevant to the issues to be determined in this Application.

iii. any documents, notes, recordings, etc., in addition to the logs, that the respondent is aware of, and that were prepared by the respondent; its employees; AB’s family; or others, with respect to AB’s conduct. The respondent may redact any private information that is not relevant to the issues to be determined in this Application.

iv. a copy of the applicant’s employment contract.

v. a copy of the contract for services between the respondent and AB or his power of attorney or next of kin.

vi. a copy of each of its abuse and harassment in the workplace policies or a copy of the full policy, if there is just one policy.

vii. a copy of the training materials that were used in training the applicant.

viii. a copy of the employee manual that was in existence at the time that the applicant was employed by the respondent.

31The Registrar shall schedule a two day merits hearing of the Application in Toronto.