Tonoukouin v. Canadian Centre for Victims of Torture, 2017 HRTO 1157

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandrine Tonoukouin Applicant

-and-

Canadian Centre for Victims of Torture and Mulugeta Abai Respondents

INTERIM DECISION

Adjudicator: Eban Bayefsky Date: September 7, 2017 Citation: 2017 HRTO 1157 Indexed as: Tonoukouin v. Canadian Centre for Victims of Torture

WRITTEN SUBMISSIONS

Sandrine Tonoukouin, Applicant Olyani Parsons, Counsel

Canadian Centre for Victims of Torture and Mulugeta Abai, Respondents Andrew Pinto, Counsel

INTRODUCTION

1The applicant filed an Application alleging that the respondents discriminated against her in employment because of race, colour, place of origin, ethnic origin, sex, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). She also alleged that the personal respondent subjected her to sexual solicitation or advances and that the respondents reprised against her contrary to the Code.

2A hearing in the matter is scheduled to commence on September 25, 2017.

3In accordance with the Tribunal’s Rules of Procedure, the parties disclosed their Arguably Relevant Documents. The parties have now requested additional disclosure from each other. This Interim Decision addresses the parties’ respective production requests.

4For the following reasons, I grant each of the parties’ production requests in part.

DECISION

5The basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant”. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal. A nexus may be established if the sought-after information goes 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 v. Toronto Police Services Board, 2009 HRTO 1220.

6Even documents that meet the “arguable relevance” threshold may not be disclosed or may be subject to limited disclosure if there are extenuating circumstances, such as privilege claims or privacy concerns that need reconciliation or protection.

The Respondents’ Request for Disclosure

7The respondents requested production of the following documents:

(i) The applicant’s complete medical records, including physician’s notes and records, from October 15, 2011 to the present.

8The applicant submitted, in part, that the hearing of her Application should be bifurcated, with the issue of remedy and any related disclosure questions addressed after the merits of the hearing are determined. I do not agree. In my view, the issue of remedy and the related production issues are sufficiently discrete that they can and should be addressed at this stage of the proceedings. I see no basis for delaying the matter.

9The applicant also submitted that, if bifurcation is denied and disclosure ordered, the Tribunal ought to review the requested medical documents prior to ordering disclosure to the respondents. Again, in my view, the question of which documents ought to be disclosed is sufficiently discrete that this intermediate step is unnecessary.

10The respondents sought disclosure of the applicant’s complete medical records from one year prior to commencing her employment on the basis that:

(i) the applicant claimed damages for mental distress arising from infringement of her human rights

(ii) the personal respondent allegedly witnessed the applicant “snorting a white substance” in the workplace

(iii) the respondents’ position that the applicant “abused/abuses illicit drugs” and that this is the cause of, or has contributed to, the applicant’s alleged mental distress

(iv) the respondents’ position that the applicant’s alleged abuse of illicit drugs negatively impacted her work performance and distorted her interpretation of events

(iv) the applicant has selectively disclosed her medical records (namely, brief reports in 2014, 2015 and 2017 from her family physician and treating psychologist regarding her stress disorders and inability to work)

11While the applicant has claimed that she suffered significant mental distress as a result of the alleged discrimination, and while the threshold of arguable relevance is relatively low, I find that the respondents’ request raises privacy concerns far outweighing the potential relevance and probative value of such a broad form of disclosure.

12I also find that the allegation that the applicant was observed on one occasion using illicit drugs is insufficient to ground the respondents’ position that the applicant abused drugs, and that this abuse caused or contributed to the applicant’s mental distress and negatively affected her work performance and perception of events.

13I am, therefore, not prepared to order disclosure of the applicant’s medical records to the extent sought by the respondents.

14However, I do find that the applicant’s claim of mental distress is relevant to the remedies she seeks, namely, compensation for injury to her dignity, feelings and self-respect, including but not limited to mental distress from the infringement of her human rights, and that the respondents are entitled to disclosure on the extent to which the applicant’s non-work-related medical history might have contributed to the severity of her symptoms.

15I note, as well, that the applicant claims to have been harassed throughout the period of her employment (October 2012 to November 2015) and that she has already disclosed medical documents regarding her mental health problems between 2014 and 2017.

16Nevertheless, this must be balanced with the significant privacy concerns noted above.

17In the circumstances, I find that the applicant must disclose, from the time she commenced her employment with the organizational respondent, namely, October 15, 2012, to the present, all medical records specifically pertaining to her treatment for mental health issues.

The Applicant’s Request for Disclosure

18The applicant requested production of the following documents:

(i) A list of all employees of the CCVT from October 25, 2012 to November 25, 2015, and their start date, annual salary, pay increase, the position(s) held, employment status (full-time, part-time, or temporary contract), sex and race, skin colour, and/or ethnicity;

(ii) A copy of any statements, notes, correspondences, memoranda or emails prepared by or sent to the investigating members of the Board of Directors in regard to Ms. Tonoukouin’s complaint about the October 2015 human rights complaint and the full names of the investigating members; and

(iii) A copy of the investigation file from Monika Jensen, including but not limited to witness statements, correspondence, memoranda, and collected documentary evidence.

19The applicant maintained that the requested list of employees was relevant to her claim of unequal treatment due to her sex, race, colour, ethnic origin and place of origin, specifically her claims that:

(i) in or around April 2015, the respondents provided white and lighter skin employees with a larger bonus payout compared to the black immigrant staff

(ii) in or around April 2014, the respondents agreed to change a contract position to full-time for a white colleague but refused to make the same concession for the applicant in March 2014

(iii) the white and Canadian staff were paid more than the black immigrant staff despite holding the same or comparable positions

20Regarding the applicant’s first request, the respondents did not, in general, dispute the arguable relevance of the noted list, but submitted that they had already provided sufficient information to satisfy the request, that the request was overly broad and “engaged privacy interests” of non-parties, and that they should not be required to “create new statistical documents.” The respondents stated that they would be prepared to reconsider the applicant’s request if she “specifies which white and Canadian staff she deems to have held the same or comparable position to her own.”

21In reviewing the materials already filed, I find that the respondents have largely satisfied the applicant’s request for the noted list. I also agree that the request needs to be tailored to the specific issues raised in the Application.

22I, therefore, find that the organizational respondent must provide written confirmation (identifying the employees involved, the years of service and the payments made to each of them) that, in or around April 2015, its employees were paid bonuses in accordance with their years of service.

23I will remain seized with whether further disclosure is required pending the applicant’s advice to the respondents of the employees she feels held comparable positions.

24Regarding the applicant’s second request, the respondents have agreed to provide a copy of any statements, notes, correspondences, memoranda or emails prepared by or sent to the investigating members of the Board of Directors in regard to the complaint of Nana Yaw Asenso-Karikari’s October 2015 human rights complaint. Based on the respondents’ advice that the organizational respondent only conducted an investigation into this complaint (and not as framed by the applicant in her request), I agree with what the respondents have consented to produce.

25Finally, based on the respondents’ advice that Ms. Jensen has destroyed her investigation records, I am not prepared to order the production of Ms. Jansen’s investigation file.

ORDER

26The respondents’ production request is granted in part, as follows:

(i) The applicant shall provide to the respondents, from the time she commenced her employment with the organizational respondent, namely, October 15, 2012, to the present, all medical records specifically pertaining to her treatment for mental health issues.

27The applicant’s production requests are granted in part, as follows:

(i) The organizational respondent shall provide to the applicant written confirmation (identifying the employees involved, the years of service and the payments made to each of them) that, in or around April 2015, its employees were paid bonuses in accordance with their years of service. I remain seized with whether further disclosure is required pending the applicant’s advice to the respondents of the employees she feels held comparable positions.

(ii) The respondents shall provide to the applicant a copy of any statements, notes, correspondences, memoranda or emails prepared by or sent to the investigating members of the Board of Directors in regard to the complaint of Nana Yaw Asenso-Karikari’s October 2015 human rights complaint.

(iii) The applicant’s request for Monika Jensen’s investigation file is denied.