HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jane Mauch
Applicant
-and-
Neil G. Pharmacy Ltd. and Neil Grewal
Respondents
INTERIM DECISION
Adjudicator: Esi Codjoe
Indexed as: Mauch v. Neil G. Pharmacy Ltd.
WRITTEN SUBMISSIONS
Jane Mauch, Applicant
Self-represented
Neil G. Pharmacy Ltd. and Neil Grewal, Respondents
Matthew Di Giovanni, Counsel
1This Interim Decision addresses the applicant’s request for production and a Tribunal Ordered Inquiry; in both requests she seeks production of documents in the respondents’ and third parties’ possession.
2On October 31, 2016, the applicant filed an Application alleging discrimination because of age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent terminated her employment and replaced her with a younger employee. She asserts that this is evidence of age discrimination.
3By Request for Order During Proceedings (“RFOP”) the applicant requested that the respondents produce the following documents for the time period January 1, 2010 to December 31, 2015:
Prescription sales, transaction lists, and sales volumes from the respondents' store and two other Shoppers Drug Marts; and,
The names and contact information for all the respondents’ pharmacy employees for the period January 1, 2012 to December 31, 2016 so that she can summons them as witnesses.
4In addition, the applicant requested that the Tribunal make a determination of the legal relationship between the respondents, the respondents’ consulting company, a predecessor corporation and Shoppers Drug Mart (by inference the parent corporation).
5By Request for Tribunal Ordered Inquiry the applicant sought information regarding pharmacists, pharmacy assistants, pharmacy technicians, registered pharmacy technicians, and pharmacy cashiers employed at a pharmacy that is not a party to this Application.
6Lastly, the applicant wrote to the Tribunal and requested summons for the Ontario College of Pharmacists (the “College”) and CBC News (“CBC”) to give evidence and produce documents.
anaylsis
Production of Arguably Relevant Documents
7In determining a production request the Tribunal must consider whether the requested documents are “arguably relevant”. The party seeking production must demonstrate a connection between the information or document sought and the facts or issues in dispute before the Tribunal. A connection may be established if the requested 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 at paras. 12-13.
8Documents that meet the “arguable relevance” threshold may not be disclosed or may be subjected limited disclosure if there are extenuating circumstances, such as privacy concerns that need reconciliation or protection.
9The applicant submits that she requires the documents as they will enable her to refute the respondents’ claim that she was unable to perform her work duties. Second, she submits that the production will make it easier for the Tribunal to determine whether she was subjected to individual discrimination, or whether there is systemic problem with age discrimination in the pharmacy industry.
10The respondents assert that the documents are not arguably relevant to the determination of whether the respondents subjected the applicant to age discrimination.
11The applicant’s production request for prescription sales, transaction lists, and sales volumes from the respondents and from third parties is denied. The information is not arguably relevant to the issue that the applicant articulated in the Application; namely whether the respondents’ terminated her employment due to age. The request is also overly broad in its scope. Lastly, pharmacy information owned by two non-parties has no bearing on whether the respondents in this Application subjected the applicant to discrimination.
Summons Request
12The applicant’s production request for the names and contact information for all employees is denied. The applicant’s request lacks specificity in two ways. First, she has not particularized which employees she wishes to summons; a request for all employee information is not arguably relevant to the issues in the Application. Second, the applicant has requested information pertaining to employees for an almost 5 year time span. The Application references incidents that occurred between September, 2015 and November 9, 2015. As such, the information is not arguably relevant to the issues outlined in the Application.
13The applicant’s request for a summons for the College and CBC are denied. The Application concerns whether the respondents subjected the applicant to age-based discrimination. I am not persuaded that the College or CBC have any information that is relevant to the issue in the case.
Legal Relationship Between Business Entities
14The applicant’s request for the Tribunal to make a determination about the relationship between the respondents, the respondents’ consulting company, a predecessor corporation and Shoppers Drug Mart is denied. This issue is not relevant to the ultimate issue in the case which relates to the Application against the two respondents the applicant has named. It appears that the applicant wishes to ascertain the nature of the respondent’s business structure or ownership. To that end, she is free to conduct a corporate search via a government office to obtain that information.
Tribunal Ordered Inquiry
15The applicant’s submits that a Tribunal Ordered Inquiry is required in order for her to advance her case. The scope of the Tribunal’s authority to an inquiry is described in s. 44 of the Code:
44 (1) At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,
(a) an inquiry is required in order to obtain evidence;
(b) the evidence obtained my assist in achieving a fair, just and expeditious resolution of the merits of the application; and
(c) it is appropriate to do so in the circumstances
16I am not persuaded that a Tribunal Inquiry is necessary in the circumstances. The information that she seeks is typically obtained by the usual production process under Rules 16 and 17, or by way of a RFOP. Further, there is no connection between this request and the ultimate issue in this case; this information in the custody of a third party has no bearing on this case.
order
17For the above reasons, the Tribunal orders as follows:
a. The applicant’s requests for production and summons are denied; and
b. The applicant’s request for a Tribunal Inquiry is denied.
Dated at Toronto, this 23rd day of November, 2017.
“Signed by”
Esi Codjoe
Vice-chair