HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kovarthanan Konesavarathan
Applicant
-and-
Wellington-Dufferin-Guelph Public Health
Respondent
INTERIM DECISION
Adjudicator: Bruce Best
Indexed as: Konesavarathan v. Wellington-Dufferin-Guelph Public Health
WRITTEN SUBMISSIONS
Kovarthanan Konesavarathan, Applicant
Self-represented
Wellington-Dufferin-Guelph Public Health, Respondent
Neil Ornstein, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of race, colour, ethnicity and place of origin contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).
2The applicant applied for positions in four separate job competitions run by the respondent. The applicant claims he was qualified for the positions, and that he was not given an interview because of his race, colour, place of origin and/or ethnic origin.
3The Application was filed on July 14, 2015, and a hearing is scheduled for August 2 and 3, 2016 in Toronto. The applicant filed a Request on June 17, 2016 to amend the Application to add additional grounds of discrimination. He is also seeking an order for production of documents.
Amendment of Grounds
4The applicant claims that he is not raising any new allegations, but rather is only seeking to add the additional grounds of disability, citizenship and sex. He argues that they should be included as he believes that they were also behind the respondent’s failure to give him an interview, and that he intends to testify with respect to how the incidents of alleged discrimination affected him as a whole person.
5The respondent opposes the Request. It argues that the applicant has presented no basis or pointed to any proposed evidence that would support adding these additional grounds. It further notes that this Request was made late in the process, and that the applicant has provided no explanation of why, if he believed that any of the additional grounds played a role in his failure to get an interview, he did not raise them in the original Application.
6The respondent further takes the position that the Request should be dismissed as an abuse of process, on the basis that it will substantially alter the nature of the case and unduly complicate and lengthen the hearing.
Decision on Amendment
7The Tribunal has the discretion to amend an application under Rule 1.7(c) of its Rules of Procedure. The question is whether, in all the circumstances, it would be fair to grant the amendments. The factors generally considered in deciding to exercise this discretion are the nature of the proposed amendments, the reasons for requesting the amendments, the timing of the request to amend, and the prejudice to the respondent. See Miraka v ACD Wholesale Meats Ltd, 2014 HRTO 363 (“Miraka”) at para. 7, Odell v. Toronto Transit Commission, 2001 CanLII 26210 (ON HRT) and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
8The Tribunal has generally held that it does not take a technical approach to pleadings. See Kilpatrick v. Ontario (Attorney General), 2015 HRTO 1301 at para. 7, and Konesavarathan v. University of Western Ontario, 2016 HRTO 908 (“Konesavarathan v. Western”) at para. 3. In the latter, also an Application brought by the applicant, the amendment sought was similar to the request in the present Application. The request was granted because the request was made early in the proceedings, during the exchange of pleadings.
9Additionally, the Tribunal has generally held that where the grounds of the allegations are set out in the narrative of the pleadings, but the applicant did not check off the appropriate box in the form, the amendment will be allowed. See Loney v. Combusco Enterprises, 2011 HRTO 1050 (“Loney”), at para. 11, and Picard v. Nails Plus by Nicole, 2012 HRTO 1252 (“Picard”), at paras. 21-23. When the substance of the claim is clear in the narrative, a failure to check off the correct boxes may be more reasonably viewed as technical or administrative error, and it would be generally be unfair to refuse an amendment in such a case, even at a late stage in the proceeding. To refuse to add a ground in such a situation may further be inconsistent with Rule A3.2 of the Tribunal’s Rules of Procedure which states that the rules and procedures are not to be interpreted and applied in a technical manner.
10The Tribunal has also permitted the grounds to be amended later in the proceedings in situations where a particular ground was not raised in an application, but became relevant based on the position subsequently taken by the respondent. In Miraka, the applicant claimed in his application that he had been terminated from his employment because of his disability. The employer took the position that he had in fact been terminated because he had missed several days of work. The applicant missed the days of work in question because he had to look after his children on an urgent basis, and argued that he was unaware until seeing the response that these absences were a factor in his termination. The applicant subsequently sought to amend his application to include discrimination on the ground of family status. Though the request was made some 6 months after the applicant had first learned that this ground may have been relevant, the Tribunal weighed the factors noted above, and held that it would be unfair to refuse the amendment in the circumstances of that case, as doing so would have prevented the applicant from challenging the specific reason given by the respondent for terminating his employment. The Tribunal held that this unfairness outweighed any prejudice to the respondents in having to respond to the new grounds.
11Unlike the above cases, however, the applicant has not provided any reasonable explanation as to why the grounds of disability and sex should now be part of the Application, nor any explanation why they were not raised in the pleadings. Raising these issues so close to the hearing will result in prejudice to the respondent, which would at a minimum need to amend its Response and witness statements to address the new grounds, and possibly need to conduct a further investigation to determine the appropriate response. Addressing the additional grounds in evidence would also impact the hearing process, and would broaden the scope of the hearing. In all the circumstances, I find that given the timing of the Request and in the absence of any explanation for the delay, and absent any indication of why these grounds may now be relevant, it would be unfair to grant the applicant’s Request to include disability and sex.
12I am, however, prepared to grant the applicant’s Request to include the ground of citizenship. Some of the allegations, particularly related to the claim that he was refused interviews because his non-Canadian experience was not given sufficient weight, could arguably be connected to citizenship as well as the grounds already claimed, and to that extent is similar to cases such as Loney and Picard discussed above. There will be minimal prejudice to the respondent in addressing this ground in addition to those already included in the Application. This amendment is being granted, however, on the basis that the allegations of discrimination respecting citizenship have already been raised in the materials filed, and granting the amendment does not give the right of the applicant to file further documents with the permission of the Tribunal.
13As noted by the respondent, the applicant has not indicated what his citizenship was at the time of the job applications. He is directed to so advise the respondent and the Tribunal within 7 days of the date of this Interim Decision.
Document Production and Particulars
14The applicant requested production of some additional documents, several of which the respondent has now provided. The following requests remain outstanding:
Numerical Data on Enumerated Grounds under the Code
Proof that Canadian Registered Safety Professional (“CRSP”) Certification is a legislative or regulatory requirement for the Emergency Planning and Health and Safety Officer position.
Jennifer Macleod’s response to Sheila Cranmer-Byng’s email dated September 10, 2014
Notes made for the job applications by each member of the selection panel during their individual assessments, and scores given to each application by each member of the selection panel during individual assessment
The first names of the other applicants for the positions, on the basis that this may indicate whether there was a gender or racial bias in the selection process.
15The respondent claims that, with respect to #1, it does not keep such data. With respect to #2, the respondent claims it has already provided an explanation as to why the requirement was included. With respect to #3, the respondent claims that there was no such document. With respect to #4, the respondent claims any documents have already been provided, and, though not explicitly requested by the applicant, provided extensive further particulars on how the applicants were screened in each job competition. With respect to #5, the respondent notes that first names do not necessarily correspond with ethnicity, race or gender.
Decision on PRoduction Request
- Numerical Data on Enumerated Grounds under the Code
16The applicant has made the same request in another Application involving another public health organization, which was refused by the Tribunal. In Konesavarathan v. Middlesex London Health Unit, 2016 HRTO 86 (“Konesavarathan v. Middlesex (2)”, the Tribunal held, at paras. 19 and 21, as follows:
The applicant requested “production of numerical data on enumerated grounds under the Code”, specifically with respect to gender, disability and race. The applicant appears to be seeking documentation showing the number of respondent’s employees who have a disability, are non-Caucasian, or are male versus female. The respondent states it does not collect such data.
The respondent advises it does not keep statistics such as those the applicant seeks. The test for disclosure of documentation is arguable relevance, which is not a particularly high threshold (see Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8). While the information being requested by the applicant is arguably relevant to the issues in this hearing, the respondent would be required to create new documents to comply with the request, and I am not prepared to order the respondent to create new statistical documents for the hearing. See: Wales v. Toyota Motor Manufacturing Canada Inc., 2012 HRTO 2104 at para. 8.
17As noted, the respondent in the present case also advises that it does not keep such data. I agree with the above decision, and for the same reasons am not going to order the respondent to create new documents for the hearing. This Request for production is denied.
- Proof that CRSP Certification is a legislative or regulatory requirement
18The applicant claims in the application that some of the qualifications required for the advertised positions were not necessary, and that their inclusion was therefore discriminatory. In particular, he argues that the CRSP certification requirement for the Emergency Planning and Health and Safety Officer position was discriminatory, on the basis that obtaining the certification requires Canadian experience, and therefore has a discriminatory impact on individuals whose experience was obtained outside Canada.
19He is asking for proof that such certification was a legislative or regulatory requirement for the position. The basis for this Request is not entirely clear, though it appears from some of the documents filed that the applicant is raising this issue on the assumption that the respondent might intend to rely on the exception in s.16(1) of the Code permitting discrimination on the basis of citizenship where Canadian citizenship is required by law. The respondent, however, does not appear to be making any such claim (and, I note, the respondent has indicated that the applicant has never disclosed his citizenship).
20The respondent explained that while there is no explicit legislative or regulatory requirement to include CRSP certification as a qualification, it was nonetheless a reasonable qualification to include in order to ensure compliance with the respondent’s obligations under the Occupational Health and Safety Act, R.S.O. 1990, c O.1.
21The respondent notes that the witness statement filed for Elizabeth Bowden already explained in detail the rationale behind requiring CRSP certification. The respondent also disputes that CRSP certification requires Canadian experience, and claim that in fact an individual can obtain CRSP certification based on foreign experience alone.
22In my view, the respondent has already provided sufficient particulars to address the applicant’s Request. The issue of whether the CRSP certification requirement was itself discriminatory is an evidentiary issue that will be determined at the hearing.
- Jennifer Macleod’s response to Sheila Cranmer-Byng’s email dated September 10, 2014
23The respondent claims that there was no response to the email, and therefore no document to produce. If the document does not exist, it cannot be produced. This Request is refused.
- Notes/scores for each job applicant
24The respondent claims that it has already provided all the documents in its possession related to the assessment of individual applicants. It notes that with respect to the May 2015 Health Promotion Specialist competition, the individual who reviewed the applications did make some rough notes, but that these had been discarded long before this Application was filed. Again, if the documents do not exist, they cannot be produced.
25Though not specifically requested by the applicant, the respondent also provided, for each of the four job competitions at issue, particulars of how the job applications were reviewed, and how the candidates were selected for interviews.
26I find that the respondent has provided sufficient particulars with respect to this request.
Anonymization/first names of other applicants
27The documents provided by the respondent with respect to the other candidates were fully anonymized. The applicant is asking that the first name of the candidates be provided, on the basis that this may disclose a pattern of excluding individuals based on discriminatory criteria, in particular that revealing the names may indicate whether the candidates were racialized and/or male.
28The respondent notes that first names do not necessarily correlate with gender or ethnicity. It also took the position that the gender or ethnicity of the other candidates would only be relevant if the applicant could demonstrate that he was as well or better qualified than the individuals selected for an interview. If the applicant was not able to meet that threshold, then expanding the inquiry to include not only the individuals selected for an interview, but all applicants, would unduly expand the scope of the Application.
29The respondent is correct that in order to establish a prima facie case that a person was not hired because of a protected ground under the Code, the applicant has to first establish that he or she was qualified for the position. See Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, and Reiss v. CCH Canadian Limited, 2013 HRTO 764 (“Reiss”), at para 61. The same test could apply, at least with respect to disclosure, in cases involving initial screenings. See Christopher v. Toronto (City), 2016 HRTO 285 (“Christopher”), at para. 16. However, as noted in Widdis v. Desjardins Group/Desjardins General Insurance, 2013 HRTO 1367 (“Widdis”) at para 47, quoting Abouchar v. Metropolitan Toronto School Board, [1998] OHRBID No. 6, the fact that an applicant was not qualified does not automatically mean that their exclusion was not discriminatory:
Even a completely unqualified applicant can be discriminated against in a hiring process on the basis of a prohibited ground, but in those circumstances, the discrimination would not likely be a proximate cause for the applicant's lack of success in the competition. Clearly the quantum of damages will be affected by a determination that discrimination affected the opportunity of a job applicant to compete equally, but not the actual selection decision.
30I also note that the Tribunal has not been consistent in terms of its approach to anonymization in disclosure requests of this type. In Widdis, the Tribunal ordered that the names be included. In Christopher, I ordered that they be anonymized as they did not appear to be arguably relevant for the purposes of that application, though left it open to the applicant to seek a further order for disclosure of the redacted information should it appear to become relevant based on the disclosure provided.
31Under Rule 3.11, the Tribunal may make an order to protect the confidentiality of personal or sensitive information. An individual may well have a legitimate interest in keeping documents such as their job applications confidential. When such documents relating to a third party become relevant in a legal proceeding, as in the present case, they may have to be disclosed. The individual, to whom the documents relate, however, will generally not have any say, or even notice, that their personal information will be disclosed. In my view, it is appropriate for Tribunal to ensure that when such disclosure is made, it should be limited to what is necessary in the circumstances.
32In this case, the applicant is alleging that he was screened out of consideration because of his race, ethnicity, place of origin, and/or citizenship. He maintains that this theory may be supported by the names of the other candidates, on the assumption that their names may reveal a pattern of discrimination based on excluding racialized applicants.
33I agree with the respondent’s position that there is not necessarily a correlation between ethnicity or race and first names, and to that extent the information may be of little or no value. However, the threshold for a document being arguably relevant is low. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8. On the basis that it may be arguably relevant to the allegations, I am prepared to grant the applicant’s request to disclose the first names of the other applicants.
34Given that order, however, I draw the parties attention to Rule 3.3 of the Tribunal’s Rules of Procedure, which states:
Confidentiality of Documents Disclosed Under These Rules
3.3 Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
35As noted in Konesavarathan v. Middlesex London Health Unit, 2015 HRTO 1698, the above rule exists in recognition of the fact that though personal information of third parties may need to be disclosed during legal proceedings, such disclosure should still respect to the extent possible the privacy interests of those individuals.
Further Issues
Additional Request for Order
36I note that the applicant filed a further Request for an Order during Proceedings on July 14, 2016, seeking to add an individual respondent, add additional incidents of alleged discrimination and of a poisoned workplace, add allegations of systemic discrimination, and to bifurcate the hearing. The applicant appears to be claiming that he was unaware of any of these additional claims until he received the respondent’s witness statements. The respondent and proposed respondent have not yet filed a Response to this request, and under the Tribunal’s rules have until July 28, 2016 to do so.
Respondent’s Witnesses and Documents
37The applicant also filed submissions objecting to the respondent’s prefacing its witness statements by stating that they were provided without prejudice to the right of the respondent to call no witnesses if no prima facie case was made out by the applicant, or to call additional witnesses or testimony or to rely on additional documents for the purposes of cross examination to address issues that may arise in the applicant’s evidence. The applicant’s submissions asked that this issue be addressed prior to the hearing.
38As noted by the applicant, the Tribunal may permit a party to rely on additional documents or witnesses, outside of those identified by the parties pursuant to Rules 16 and 17, in the interests of procedural fairness. I do not see the respondent as stating anything other than if procedural fairness would entitle it to provide additional documents or witnesses, based on the evidence or testimony presented by the applicant, that it reserves its right to do so. The issue of whether procedural fairness would in fact require such additional evidence is, of course, an issue to be determined by the Tribunal based on the circumstances.
Order and Directions
39The Tribunal orders as follows:
The Application is amended to include the ground of citizenship.
The applicant shall advise the respondent and the Tribunal what his citizenship was at the relevant times within 7 days of the date of this Interim Decision.
The respondent shall provide the applicant with a copy of Tabs 1, 6-9, 16-21, 28-32, and 38-42 of its documents which include the first name of the applicants.
40The additional request filed July 14, 2016 will be addressed as a preliminary issue on the first day of hearing.
Dated at Toronto, this 19^th^ day of July, 2016.
“Signed By”
Bruce Best
Vice-chair