HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rati Nagre
Applicant
-and-
Citigroup Fund Services Canada, Inc.
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Nagre v. Citigroup Fund Services Canada, Inc.
WRITTEN SUBMISSIONS
Rati Nagre, Applicant
Cecil Norman, Representative
Citigroup Fund Services Canada, Inc., Respondent
Andrea York, Counsel
Introduction
1The purpose of this Interim Decision is to deal with the respondent’s request to dismiss part of the Application on the basis of delay, and to deal with the applicant’s request for production of documents.
BACKGROUND
2On October 11, 2016, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to employment because of her disability and age.
3Specifically, the applicant alleged that the heavy workload of her job had a negative impact on her health, and in mid-January 2015, when her health was rapidly deteriorating, she asked her supervisor on several occasions to reduce her workload, but her request was denied. She further alleged that in July 2015, she went on a medical leave of absence, and on September 26, 2016, while she was still on her leave, the respondent terminated her employment.
4On January 17, 2017, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that it terminated the applicant’s employment for a non-discriminatory reason, namely, its decision to wind down its investor services business in Canada, which resulted in the lay-off of almost 200 employees, including the applicant.
5On August 17, 2017, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing of the merits of the Application was scheduled for March 28 and 29, 2018. The Notice also informed them that pursuant to Rule 16.1 of the Tribunal’s Rules of Procedure, they were required to deliver to each other a list and copy of all arguably relevant documents in their possession by no later than September 7, 2017.
6On August 27, 2017, the respondent filed a Request for an Order During Proceedings (“RFOP”), which requested that the Application be dismissed in part because of delay. Specifically, the respondent stated that the applicant’s allegation that the respondent discriminated against her by failing to accommodate her disability-related needs during her employment (by denying her request for a reduced workload) is untimely.
7On September 5, 2017, the applicant filed a Response to the respondent’s RFOP, which opposed dismissing her Application in part because of delay.
8On September 5, 2017, two days before the deadline for the arguably relevant documents to be delivered, the applicant filed a RFOP, which requested the production of documents from the respondent.
9On September 7, 2017, the respondent filed a Form 23, which indicated that it had sent the applicant a list and copy of the respondent’s arguably relevant documents on the same day.
DELAY
10I will deal first with the respondent’s request to dismiss part of the Application on the basis of delay.
11The time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
12The first issue to determine is whether the alleged incidents of discrimination in the Application constitute a “series of incidents”. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.
13In her Application and Response to the respondent’s RFOP, the applicant alleged that the incidents of discrimination where the respondent failed to accommodate her disability-related needs by denying her request for a reduced work schedule or load occurred in February 2014, October 2014, January 2015, and March 2015, and the last incident of discrimination where the respondent terminated her employment because of her disability and age occurred on September 26, 2016.
14In her Application and Response to the respondent’s RFOP, the applicant also alleged that the applicant was off work on a medical leave from July 17, 2015 onwards, and that in February 2016, she was doing everything to expedite her return to work. However, in her Response to the respondent’s RFOP, she further added: “… yet the respondent failed in its duty to accommodate her needs.” In view of the fact that this allegation was not in her Application, and there were no particulars or explanation about how the respondent failed to accommodate her disability-related needs when she was on a medical leave, I do not accept that this is a further alleged failure to accommodate incident. In my view, this is an unconvincing attempt to create a series of incidents that are timely.
15In her submissions in support of her Response to the respondent’s RFOP, the applicant stated that the Application in its totality is timely because the facts upon which the Application is based occurred less than one year before the Application was filed.
16I disagree. The alleged failure to accommodate incidents between February 2014 and March 2015 were clearly a series of incidents. However, there was then a break of more than one year between the last alleged incident in this series in March 2015, and the alleged termination of employment because of disability and age incident on September 26, 2016. As such, I find that the last alleged incident of discrimination on September 26, 2016 was not part of a series of incidents.
17The second issue to determine is whether the alleged incidents of discrimination between February 2014 and March 2015 are outside the one-year time limit in s. 34(1) of the Code. In view of the fact that the last incident this series occurred in March 2015, but the Application was not filed until October 11, 2016, I find that these allegations are outside the one-year time limit in s. 34(1) of the Code.
18The third issue to determine is whether the applicant’s delay in filing her Application with respect to the alleged incidents of discrimination between February 2014 and March 2015 was incurred in good faith.
19In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal explained at paras. 24-25, what an applicant must show to satisfy the Tribunal that a delay was incurred in good faith:
In my view, where an applicant seeks to establish that a delay in filing an application was “incurred” in good faith, the applicant must show something more than simply an absence of bad faith. Otherwise, there would be little meaning to the statutory limitation period. The Code requires a person who wishes to pursue a claim of discrimination to bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. This is a mandatory provision, subject only to section 34(2). The mandatory one-year limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.
In dealing with requests that applications be considered outside the one-year limitation period, the Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay….
See also Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424 at para. 20, and Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670 at para. 21.
20In Lafleur v. Kimberley Scott, 2009 HRTO 1141, the Tribunal also stated at para. 8:
To establish that delay in pursuing one’s rights has been incurred in good faith, it must be shown that the applicant acted honestly and with no ulterior motive. (Hart v. Hart (1990), 1990 CanLII 12268 (ON HCJ), 27 R.F.L. (3D) 419 (Ont. U.F.C.), cited in Scherer v Scherer (2002) 2002 CanLII 44920 (ON CA), 59 OR (3d) 393 (O.C.A.). Delay has been found not to have been incurred in good faith where it was due to wilful blindness to the need to make inquiries about one’s rights: Webster v Webster Estate, 2006 CanLII 22941 (ON SC), [2006] OJ No. 2749 (ON S.C.). The courts have held that “failure to act in ignorance of one’s rights may, in some circumstances, amount to “good faith”. However, … it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.” (Busch v Amos, 1994 CanLII 7454 (ON CTGD), [1994] OJ No. 2975 (Ct. J. (Gen. Div.), cited in Scherer, supra).
21In her submissions, the applicant stated that any delay in filing her Application with respect to these alleged incidents of discrimination was incurred in good faith because she was not aware at that time that the respondent’s failure to accommodate her disability-related needs was a violation of the Code.
22I disagree. The applicant merely stated that she failed to act in ignorance of her rights under the Code. She has not established that she had no reason to make enquiries about her rights under the Code. In the circumstances, I find that her delay in filing her Application with respect to these alleged incidents of discrimination was not incurred in good faith.
23In view of my finding that the applicant’s delay in filing her Application with respect these alleged incidents of discrimination was not incurred in good faith, it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.
24Accordingly, the applicant’s allegation that the respondent failed to accommodate her disability-related needs between February 2014 and March 2015 is dismissed.
PRODUCTION OF DOCUMENTS
25I will deal next with the applicant’s request for production of documents.
26Rule 16.1 of the Tribunal’s Rules requires each party to deliver to every other party a list and copy of all arguably relevant documents in its possession, but this requirement is triggered by the issuance of the Notice of Hearing. In the case at hand, the Notice of Hearing informed the parties that the deadline for this disclosure was September 7, 2017.
27For reasons that remain unclear, the applicant filed her RFOP for production of documents on September 5, 2017, which was two days before this disclosure deadline. The respondent sent the applicant a list and copy of its arguably relevant documents on September 7, 2017. Since then, the applicant has not clarified whether this disclosure complied with her request.
28In view of the fact that the applicant filed her request for production of documents prematurely, and she has failed to clarify whether the respondent’s disclosure of arguably relevant documents to her on September 7, 2017 complied with her request, her request is denied.
29In any case, the applicant’s request for production of documents is overly broad. In her RFOP, she requested that the Tribunal order the respondent to produce her “complete” personnel file held by Human Resources, her “complete” line file held by her supervisor, and the respondent’s “complete” workforce demographics.
30Rule 1.7(p) of the Tribunal’s Rules 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 and to 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.
31It 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.
32In 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.
Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.
Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.
The Tribunal is also sensitive to privacy issues….
33The applicant has simply made a broad request for production of documents, which amounts to a fishing expedition. She has not clearly explained what specific documents she is seeking, and why such documents are “arguably relevant” to the issues in dispute in the proceeding.
34Accordingly, the applicant’s request for production of documents is denied.
ORDER
35The Tribunal makes the following orders:
The respondent’s request to dismiss part of the Application on the basis of delay is upheld. Specifically, the applicant’s allegation that the respondent failed to accommodate her disability-related needs between February 2014 and March 2015 is dismissed.
The applicant’s request for production of documents is denied.
36I am not seized of this matter.
Dated at Toronto, this 20th day of October, 2017.
“Signed by”
Ken Bhattacharjee
Vice-chair