Kayreen Brickner v. Royal Canadian Mounted Police

Kayreen Brickner v. Royal Canadian Mounted Police
Collection
Canadian Human Rights Tribunal
Date
2017-08-14
Neutral citation
2017 CHRT 28
File number(s)
T2125/4115
Decision-maker(s)
Thomas, David L.
Decision type
Ruling
Decision status
Interim
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
28
Date:
August 14, 2017
File No.:
T2125/4115
Between:
Kayreen Brickner
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Royal Canadian Mounted Police
Respondent
Ruling
Member:
David L. Thomas
Table of Contents
I. Complaint & Motions for Disclosure 1
II. Principles of Disclosure 1
III. Complainant’s Motion for Disclosure 3
IV. Documentation Requested By Complainant 4
1. All documents pertaining to the outcome of the question posed in 2013 by K Division DSSR Michelle BOUTIN to Commissioner PAULSON regarding Workplace Accommodation. 4
(i) Complainant’s Submissions 4
(ii) Commission’s Submissions 4
(iii) Respondent’s Submissions 4
(iv) Tribunal’s Ruling 5
2. All requests made within M Division (Yukon) and all documents pertaining to the number of Family accommodations received as per form 6346 (created b/w 2012-05) in 2012, 2013, 2014 and 2015. These documents can be vetted to protect the identity of the requestor. 5
(i) Complainant’s Submissions 5
(ii) Commission’s Submissions 5
(iii) Respondent’s Submissions 6
(iv) Tribunal’s Ruling 6
3. All documents pertaining to file 2013-3588, this file was created and maintained by S/Sgt. Diane DOYLE. S/Sgt. DOYLEs position was a Respectful Workplace representative for E Division which oversaw M Division. 7
(i) Tribunal’s Ruling 7
4. All documents pertaining to the “yellow” files labeled BRICKNER and/or MARINIS maintained by E and M Division Human Resource Officer A/Comm Sharon WOODBURN. 7
(i) Tribunal’s Ruling 7
5. All documents pertaining to Sgt. Cindy RATTRAY, E Division promotions unit, giving direction or receiving requests for assistance from S/Sgt. Tony PARK. Including any notes, direction or communications relating to M Division and MCU placements and/or Cpl. Kayreen BRICKNER. 8
(i) Tribunal’s Ruling 8
6. All documents pertaining to conversations, communications or direction Elizabeth MACDONALD gave regarding staffing, grievances or human rights complaints involving Cpl. Kayreen BRICKNER and/or Phil GOULET and any member in M Division relating to promotional or staffing actions, specifically the two processes of the MCU position (2014-2017) and the Crops Reviewer (promotion) 2015. This would include notes, files and phone conversations relating to Cpl. Kayreen BRICKNER including the following phone conversations; 9
(i) Tribunal’s Ruling 9
7. All documents from Inspector Phil GOULET, E Division Promotions Unit, pertaining to Cpl. Kayreen BRICKNER, the Crops Reviewer position (promotion 2015) includes (sic) any notes, documents and communications regarding phone conversations, the staffing file and the Grievance. 9
(i) Tribunal’s Ruling 9
8. All documents pertaining to the (depersonalized) staffing actions for M Division, including Bulletins, STE positions, and divisional placements, newly created positions, official staffing actions (posted jobs national/promotion) and a list of positions that remained vacant anytime within years 2012 – 2014. Breaking down: 10
(i) Complainant’s Submissions 10
(ii) Commission’s Submissions 11
(iii) Respondent’s Submissions 11
(iv) Tribunal’s Ruling 11
9. All documents pertaining to the MCU staffing file (2014) for the Corporal position that has remained vacant and is still vacant. Including notes, meetings, emails and direction regarding the stopping and starting (reviews) of this job process. 13
(i) Complainant’s Submissions 14
(ii) Commission’s Submissions 14
(iii) Respondent’s Submissions 14
(iv) Tribunal’s Ruling 14
10. A copy of then Cpl. and now Sgt. Calista MCLEODs CV that was submitted for the MMIW&G positon in 2013. 15
(i) Complainant’s Submissions 15
(ii) Commission’s Submissions 15
(iii) Respondent’s Submissions 16
(iv) Tribunal’s Ruling 16
11. A copy of then Cpl. and now Sgt. Calista MCLEODS resume / CV used for her placement/secondment to MCU in 2013 (2013-2015). 16
(i) Complainant’s Submissions 16
(ii) Commission’s Submissions 17
(iii) Respondent’s Submissions 17
(iv) Tribunal’s Ruling 17
12. A copy of then Cpl. and now Sgt. Calista MCLEOD’s competencies and Cover resume used to compete in the promotion for the Crops Reviewer Position in January 2015. 18
(i) Tribunal’s Ruling 18
13. All documents pertaining to the request by M Division for an “Independent” Review of the MCU selection (2012) including a copy of the review file, communications and notes between involved parties. This is referenced in emails and is believed to have been created by Insp. LUCIER and/or Supt. MCCONNELL. 18
(i) Tribunal’s Ruling 18
14. A copy of the document (attachment) from S/Sgt. BRAMHILL’s email titled “Family Separation” that was sent to S/Sgt. Douglas COOPER on October 31, 2014. 19
(i) Tribunal’s Ruling 19
15. A copy of the attachment from the email forwarded to Insp. TEWNION on June 4, 2012 by S/Sgt. PARK. Attachment was labeled “MARINIS-spouse”. 19
(i) Tribunal’s Ruling 19
16. All relevant documents related to Cpl. Lana PLUMMERS emails to M Division S/Sgt. PARK and/or Sgt. Mark LONDON (August 7, 2012) where Cpl. PLUMMER identified herself as a mother with an 18 month old child and was interested in the MCU position. 20
(i) Tribunal’s Ruling 20
17. A list of all the Corporals within the division and the dates each Corporal received their assessments for since 2013. 20
(i) Complainant’s Submissions 20
(ii) Commission’s Submissions 20
(iii) Respondent’s Submissions 21
(iv) Tribunal’s Ruling 21
18. A list of the M Division Corporals and or Constables in an acting role (Sergeant and/or Staff/Sergeant) since 2013. 22
(i) Complainant’s Submissions 22
(ii) Commission’s Submissions 22
(iii) Respondent’s Submissions 22
(iv) Tribunal’s Ruling 23
19. In June or July 2012 Carla DECOCK applied for a dispatchers position in M Division, in the initial stages of the job process, the staffing officer Barb ARMSTRONG contacted S/Sgt. Tony PARK and advised him that DECOCK had applied for a position/transfer to Whitehorse and was common law with Cpl. Mark CASWELL. ARMSTRONG sent an email “to see if there would be anything for him in Whitehorse if he is deemed releasable and outlined that he was currently in GIS. In light of this secondary process that was started after I had requested family accommodation, and the efforts that were made to identify and accommodate Cpl. Mark CASWELL just prior to the MCU job being advertised, I am requesting that all information pertaining to Carla DECOCK and the discussions surrounding her transfer to Whitehorse be disclosed. 24
(i) Complainant’s Submissions 25
(ii) Commission’s Submissions 25
(iii) Respondent’s Submissions 25
(iv) Tribunal’s Ruling 25
20. Full Disclosure regarding any discrimination, harassment or workplace conflict complaints made against S/Sgt. Jason FLYNN, Sgt. Mark LONDON, S/Sgt. Doug HARRIS, C/Supt. Paul McCONNELL, and Assistant Commissioner Peter CLARK including how they were addressed, the outcome of those complaints, and any subsequent redress. 27
(i) Complainant’s Submissions 27
(ii) Commission’s Submissions 27
(iii) Respondent’s Submissions 27
(iv) Tribunal’s Ruling 28
21. Full disclosure regarding any grievances or complaints under the command of Insp. Phil GOULET, the Officer in Charge of the Staffing and Promotion unit where applicants were removed from the validation pool when there was a supported objection of a validation committee member, including how they were addressed, the outcome of those complaints. 30
(i) Complainant’s Submissions 30
(ii) Commission’s Submissions 30
(iii) Respondent’s Submissions 30
(iv) Tribunal’s Ruling 31
22. Copies of Curriculum Vitae (CV’s) for the following witnesses and /or people referenced as Subject Matter Experts. 31
(i) Complainant’s Submissions 31
(ii) Commission’s Submissions 32
(iii) Respondent’s Submissions 32
(iv) Tribunal’s Ruling 32
23. Copies of all notes for the following individuals relating to me, my husband (as I am referred to his spouse in documents) and my complaint(s) (grievance/Canadian Human Rights Complaint) which has been summed up and simplified within the RCMP as lateral transfer including my complaint of Harassment (Act of Retaliation). 32
(i) Complainant’s Submissions 33
(ii) Commission’s Submissions 34
(iii) Respondent’s Submissions 34
(iv) Tribunal’s Ruling 34
I. Complaint & Motions for Disclosure
[1] Corporal Kayreen Brickner (Complainant or Cpl. Brickner) is a female member of the Royal Canadian Mounted Police (RCMP), the Respondent in this proceeding. She is married to another member of the RCMP and together they have four minor children. The Complainant and her husband, Corporal Marinis (Cpl. Marinis), had been stationed together at E Division (British Columbia) in Squamish, B.C. In April 2012, Cpl. Marinis applied for an RCMP position in Whitehorse in the Yukon Territory but it required moving his spouse and children from British Columbia to the Yukon Territory.
[2] The Complainant alleges in her Statement of Particulars (SOP) that the RCMP agreed to try its best to accommodate her in securing a new position in Whitehorse. However, she only began to work in Whitehorse two years later in January 2015. In the meantime, the Complainant alleges that the RCMP in the Yukon (M Division) had offered her a position that did not accommodate her childcare responsibilities. The Complainant further alleges that subsequent to her rejection of this offer of employment, M Division failed to inform her of other available employment opportunities and deviated from RCMP practice in filling positions with other candidates rather than staffing the said positions with the Complainant. She alleges this was discrimination based on the grounds of sex and family status. She also alleges two acts of retaliation.
[3] In preparing for the hearing of this case, Cpl. Brickner has brought this motion for the disclosure of documentation that she believes is arguably relevant.
II. Principles of Disclosure
[4] Pursuant to subsection 50(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (Act), parties before the Canadian Human Rights Tribunal (Tribunal) must be given a full and ample opportunity to present their case. To be given this opportunity, parties require, among other things, the disclosure of arguably relevant information in the possession or care of the opposing party prior to the hearing of the matter. Along with the facts and issues presented by the parties, the disclosure of information allows each party to know the case it is up against and, therefore, adequately prepare for the hearing.
[5] In deciding whether the information ought to be disclosed, the Tribunal must consider whether the information at issue is arguably relevant (see Warman v. Bahr, 2006 CHRT 18 at para. 6). This standard is meant to “prevent production for purposes which are speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming” (see Day v. Department of National Defence and Hortie, Ruling No. 3, 2002/12/06). This also ensures the probity of the evidence.
[6] The standard is not a particularly high threshold for the moving party to meet. If there is a rational connection between a document and the facts, issues, or forms of relief identified by the parties in the matter, the information should be disclosed pursuant to paragraphs 6(1)(d) and 6(1)(e) of the Tribunal’s Rules of Procedure (03-05-04) (Rules) (see Guay v. Canada (Royal Canadian Mounted Police), 2004 CHRT 34 at para. 42 (Guay); Rai v. Royal Canadian Mounted Police, 2013 CHRT 6 at para. 28; and, Seeley v. Canadian National Railway, 2013 CHRT 18 at para. 6 (Seeley)).
[7] However, the request for disclosure must not be speculative or amount to a “fishing expedition” (see Guay at para. 43). The documents requested should be identified with reasonable particularity. It is the Tribunal’s view that in the search for truth and despite the arguable relevance of evidence, the Tribunal may exercise its discretion to deny a motion for disclosure, so long as the requirements of natural justice and the Rules are respected, in order to ensure the informal and expeditious conduct of the inquiry (see Gil v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 8407 (FC) at para. 13; see also s. 48.9(1) of the Act).
[8] This Tribunal has already recognized in its past decisions that it may deny ordering the disclosure of evidence where the probative value of such evidence would not outweigh its prejudicial effect on the proceedings. Notably, the Tribunal should be cautious about ordering searches where a party or a stranger to the litigation would be subjected to an onerous and far-reaching search for documents, especially where ordering disclosure would risk adding substantial delay to the efficiency of the inquiry or where the documents are merely related to a side issue rather than the main issues in dispute (see Yaffa v. Air Canada, 2014 CHRT 22 at para. 4; Seeley at para. 7; see also R. v. Seaboyer [1991] 2 S.C.R. 577 at 609-611).
[9] It should also be noted that the disclosure of arguably relevant information does not mean that this information will be admitted in evidence at the hearing of the matter or that significant weight will be afforded it in the decision making process (see Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services, 2007 CHRT 28 at para. 4).
[10] Moreover, given that a party’s obligation to disclose is limited to documents that are “in the party’s possession” under section 6 of the Rules, the Tribunal cannot order a party to generate or create new documents for disclosure (see Gaucher v. Canadian Armed Forces, 2005 CHRT 42 at para. 17).
III. Complainant’s Motion for Disclosure
[11] The disclosure process between the parties commenced more than a year ago. The Respondent provided a number of documents, more than 1,100 in total, to the Complainant in the fall of 2016. However, Cpl. Brickner believed there were more relevant documents outstanding, so she made a written request to the RCMP in January of 2017, outlining various documents that she wanted disclosed. Cpl. Brickner was not satisfied with the Respondent’s response to her request, which she received in April 2017. As such, Cpl. Brickner brought a motion for disclosure to the Tribunal on May 17, 2017.
[12] A Case Management Conference Call (CMCC) was held on May 24, 2017, at which time I raised the point that the time required to hear, rule on and comply with any order made on this complex motion might result in the parties not being ready to begin the hearing scheduled to start in September 2017. Two days later, Cpl. Brickner advised the Tribunal that she would amend her motion to narrow the list of requests. The new motion, which is the subject of this ruling, was received by the Tribunal on May 29, 2017. Submissions on the motion were received from the Commission and the RCMP, and the Complainant and the Commission were permitted to provide reply submissions.
[13] In total, the motion lists 23 separate documents or groups of documents that Cpl. Brickner would like disclosed by the RCMP. This ruling will address each of those 23 requests separately, with the Tribunal’s ruling for each request contained under each of the 23 headings below.
IV. Documentation Requested By Complainant
1. All documents pertaining to the outcome of the question posed in 2013 by K Division DSSR Michelle BOUTIN to Commissioner PAULSON regarding Workplace Accommodation.
Note: Commissioner PAULSON is set to retire by the end of June 2017. If this particular disclosure is moved forward by the tribunal then I request that a firm deadline also be imposed on the RCMP to guard against the potential inability of Commissioner PAULSON to disclose given his announced retirement date.
(i) Complainant’s Submissions
[14] Cpl. Brickner believes these documents are arguably relevant because they would show that senior managers of the RCMP were informed in 2013 that there were failures throughout the organization to meet requests for family accommodations. In her view, this would be evidence of a systemic issue within the RCMP.
(ii) Commission’s Submissions
[15] The Commission believes this information would be helpful to Cpl. Brickner and that Commissioner Paulson’s response to female officers about workplace accommodation would be arguably relevant to compare it to the manner in which Cpl. Brickner was treated.
(iii) Respondent’s Submissions
[16] The RCMP submits that this request is too vague, too broad and the information requested is, at best, of questionable usefulness. There is no adequate information in the request to specifically identify the email exchange or to understand which documents she is seeking production of. It also submits that a response given four years ago may not be an accurate reflection of current RCMP policies or practices.
[17] Notwithstanding its objections, the RCMP has indicated it will make reasonable efforts to look for and produce Commissioner Paulson’s email or otherwise written response to DSSR Michelle Boutin’s 2013 question on workplace accommodation.
(iv) Tribunal’s Ruling
[18] The RCMP is ordered to make reasonable efforts to look for and produce Commissioner Paulson’s email or otherwise written response to DSSR Michelle Boutin’s 2013 question on workplace accommodation. The Tribunal imposes a deadline of September 15, 2017, to comply with this order. However, if the Respondent is able to comply earlier, the earlier production should be made to assist with this matter moving forward to hearing in a timely manner. If this documentation cannot be located with reasonable efforts, the RCMP will advise the other parties and the Tribunal what steps were undertaken in committing their efforts on or before September 15, 2017.
2. All requests made within M Division (Yukon) and all documents pertaining to the number of Family accommodations received as per form 6346 (created b/w 2012-05) in 2012, 2013, 2014 and 2015. These documents can be vetted to protect the identity of the requestor.
(i) Complainant’s Submissions
[19] The Complainant states that this form is required by the RCMP when a family accommodation request is made. However, she was not advised of this requirement and as such, she wants to see if there was any formal direction or policy requiring the completion of this form at the relevant time.
(ii) Commission’s Submissions
[20] The Commission supports the request given that the RCMP alleged in its SOP that Cpl. Brickner did not make a request for accommodation or fill out form 6346. It further adds that the RCMP should disclose the number of times a family accommodation was made in 2012-2015 in M Division where the form 6346 was not submitted.
(iii) Respondent’s Submissions
[21] The RCMP characterizes this request as an onerous and far-reaching search for documents. Its submission explains that there are approximately over 200 employees in M Division alone and that formal family-related workplace accommodation requests are not kept in a central database. Thus, to fulfill the request, the RCMP would be required to manually review the paper service files of each RCMP member posted at M Division within the relevant time. Furthermore, since the paper copies of such forms would only exist in each employee’s file, where employees have transferred to other divisions of the RCMP, M Division would have to request the assistance of other divisions of the RCMP to obtain the forms, if any, in dispute. Where the form was not filed, an informal request would have been made to the employee’s supervisor, and in such cases, the RCMP submits, it would be necessary to contact every supervisor working during that period to canvass their recollection of informal requests. The RCMP also gave additional reasons why it objects to this request.
(iv) Tribunal’s Ruling
[22] The Tribunal recognizes that the production of the documents requested by Cpl. Brickner may help refute the RCMP’s claim that she ought to have completed form 6346 in order to receive family accommodation. However, given that the collection of this information would be time-consuming for the RCMP and given that the documentation sought appears to be of limited value to the Complainant’s case, it is the Tribunal’s view that this request for disclosure ought to be denied.
[23] At the hearing, and perhaps in the cross-examination of the Respondent’s witnesses, Cpl. Brickner will have the opportunity to explore the question of whether there were exceptions to the requirement to complete the form 6346 in order to have workplace accommodation. It is the Tribunal’s view that proceeding in this manner will prevent further delay in the proceeding while preserving the Complainant’s right to know the case she has to meet.
[24] Regarding the Commission’s suggestion that the RCMP disclose the number of times a family accommodation was made in 2012-2015 in M Division where the form 6346 was not submitted, the Tribunal is of the view that the Commission is requesting the Tribunal to order the creation of a document or list. Under section 6 of the Rules, a party’s obligation to disclose is limited to documents that are in the party’s possession. As stated above, the Tribunal cannot order a party to generate or create new documents for disclosure. For these reasons, the Commission’s request is denied.
3. All documents pertaining to file 2013-3588, this file was created and maintained by S/Sgt. Diane DOYLE. S/Sgt. DOYLEs position was a Respectful Workplace representative for E Division which oversaw M Division.
(i) Tribunal’s Ruling
[25] The RCMP has agreed to disclose and produce all documents located in the above-mentioned file, with the exception of any document that may be protected by a recognized privilege under the law of evidence. If there are any documents for which privilege is claimed, the Respondent will indicate to the other parties such documents and the privilege claimed. The Tribunal orders the production of these documents and imposes a deadline of September 15, 2017, to comply. However, if the Respondent is able to comply earlier, the earlier production should be made to assist with this matter moving forward to the hearing in a timely manner.
4. All documents pertaining to the “yellow” files labeled BRICKNER and/or MARINIS maintained by E and M Division Human Resource Officer A/Comm Sharon WOODBURN.
(i) Tribunal’s Ruling
[26] The RCMP has agreed to disclose and produce a copy of Cpl. Brickner and Cpl. Marinis’ “yellow files” (service files). In its submissions, the RCMP argues that much of Cpl. Brickner’s file, and perhaps the totality of Cpl. Marinis’ file, is not arguably relevant. However, in this case, the RCMP has agreed to the disclosure request anyway, but on the condition that it receives written consents from Cpl. Brickner and Cpl. Marinis before such disclosure is made. The reason for this was not explained in the RCMP’s submissions, but it would appear to be a reasonable request, especially for Cpl. Marinis, who is not a party to this proceeding.
[27] As such, the Tribunal makes no order regarding this request and leaves it up to the Complainant and her husband to avail themselves of the Respondent’s offer.
5. All documents pertaining to Sgt. Cindy RATTRAY, E Division promotions unit, giving direction or receiving requests for assistance from S/Sgt. Tony PARK. Including any notes, direction or communications relating to M Division and MCU placements and/or Cpl. Kayreen BRICKNER.
(i) Tribunal’s Ruling
[28] The Tribunal does not need to order disclosure on this request as the RCMP indicates its belief that it has already disclosed all such relevant documents in its possession. However, the Tribunal directs the Respondent to provide Cpl. Brickner with a list of all documents that it has already provided which it believes meets this request on or before September 15, 2017. The Respondent has further agreed to confirm with Sgt. Rattray that all documents arguably relevant to this matter, including notes from July and August 2012, have been produced. If any new documents are identified, the Tribunal orders their disclosure subject to the exception of any document that may be protected by a recognized privilege under the law of evidence. If there are any documents for which privilege is claimed, the Respondent will indicate to the other parties such documents and the privilege claimed. The Tribunal imposes a deadline of September 15, 2017, to comply with this order. However, if the Respondent is able to comply earlier, the earlier production should be made to assist with this matter moving forward to the hearing in a timely manner. If any new such documents are identified at a later date, they will be disclosed and produced as required by Rule 6(5)(b).
6. All documents pertaining to conversations, communications or direction Elizabeth MACDONALD gave regarding staffing, grievances or human rights complaints involving Cpl. Kayreen BRICKNER and/or Phil GOULET and any member in M Division relating to promotional or staffing actions, specifically the two processes of the MCU position (2014-2017) and the Crops Reviewer (promotion) 2015. This would include notes, files and phone conversations relating to Cpl. Kayreen BRICKNER including the following phone conversations;
· April 2015 Phone conversation(s) with Insp. Phil GOULET relating to the Crops Reviewer promotional position in M division, grievance and human rights complaint.
· February 12, 2016 Phone conversation with S/Sgt. Jason FLYNN regarding the conversation and direction given relating to the MCU lateral position.
(i) Tribunal’s Ruling
[29] The Tribunal does not need to order disclosure on this request as the RCMP indicates it believes that it has already disclosed all such relevant documents in its possession. However, the Tribunal directs the Respondent to provide Cpl. Brickner with a list of all documents that it has already provided which it believes meets this request on or before September 15, 2017. If any new documents relevant to this request are identified, the Respondent must disclose them in accordance with Rule 6(5)(b) subject to the exception of any document that may be protected by a recognized privilege under the law of evidence. If there are any documents for which privilege is claimed, the Respondent will indicate to the other parties such documents and the privilege claimed.
7. All documents from Inspector Phil GOULET, E Division Promotions Unit, pertaining to Cpl. Kayreen BRICKNER, the Crops Reviewer position (promotion 2015) includes (sic) any notes, documents and communications regarding phone conversations, the staffing file and the Grievance.
(i) Tribunal’s Ruling
[30] The Tribunal does not need to order disclosure on this request as the RCMP indicates that it believes it has already disclosed all such relevant documents in its possession. However, the Tribunal directs the Respondent to provide Cpl. Brickner with a list of all documents that it has already provided which it believes meets this request on or before September 15, 2017. If any new documents relevant to this request are identified, the Respondent must disclose them in accordance with Rule 6(5)(b) subject to the exception of any document that may be protected by a recognized privilege under the law of evidence. If there are any documents for which privilege is claimed, the Respondent will indicate to the other parties such documents and the privilege claimed.
8. All documents pertaining to the (depersonalized) staffing actions for M Division, including Bulletins, STE positions, and divisional placements, newly created positions, official staffing actions (posted jobs national/promotion) and a list of positions that remained vacant anytime within years 2012 – 2014. Breaking down:
· All 2285’s for the NCO General Duty positions in from April 2012 thru 2014.
· All A22a issued for M Division NCO Cpl. positions filled laterally or promoted into between April 2012-2014.
· General Duty Schedule (working schedule) including restructuring, secondments and vacancies for 2012, 2013 and 2014.
· M Division MCU schedule (working) which reflects the restructuring, secondments and vacancies throughout 2012, 2013, and 2014.
· Org Chart – Including years 2012, 2013, 2014 outlining FTE and duration in each position in which he did not vacate General Duty until his transfer in Feb 2013.
(i) Complainant’s Submissions
[31] Cpl. Brickner argues that these documents will give an accurate account of how M Division manages its resources and vacancies. She suggests that there were additional positions available that were not offered to her and as such these documents support her allegations of discrimination and retaliation.
[32] In her Reply submissions, Cpl. Brickner does not add clarification. She reiterates requests for two documents the RCMP has agreed to provide, and she requests information in two instances, but not related to specific documents. She also uses her Reply to make argument in support of her allegations.
(ii) Commission’s Submissions
[33] The Commission agrees these documents are arguably relevant because they will allow the parties and the Tribunal to examine the RCMP’s defence in context of its argument that it could not offer certain positions to Cpl. Brickner.
(iii) Respondent’s Submissions
[34] The RCMP states that some of the above disclosure has already been made, and it agrees to make certain further disclosure of documents requested that are in its possession. However, the Respondent refuses to disclose certain documents, such as documents relating to positions outside of Whitehorse or at levels other than Corporal, some of which it argues are not relevant and for others it argues that the requests are too onerous and far-reaching.
(iv) Tribunal’s Ruling
[35] The Complainant’s request was not entirely clear to the Tribunal, especially since Cpl. Brickner uses some abbreviations and terminology that are not familiar to it. She also makes a reference to a specific person in the last part of her request (i.e. “…which he did not vacate…”), but does not sufficiently identify this person. Moreover, it was not clear what M Division meant geographically to the Complainant. A request for clarification was made to Cpl. Brickner, and the other parties were offered a chance to reply to her clarifications. The Commission chose not to reply to the Complainant’s clarifications. The Respondent replied and added to the clarifications. They also confirmed which documents they had already disclosed under this request. The clarifications have assisted the Tribunal with this decision. Notably, while the Complainant’s understanding of M Division differs from that of the RCMP, the Complainant’s response confirms that she is only interested in acquiring information about positions physically located in Whitehorse. The Complainant also specified that the person she refers to in the request is Cpl. Hutchings, yet she provided no reasons to explain the arguable relevance of this specific request.
[36] In a broad sense, any documentation requested must be arguably relevant, and as such it must bear some connection with the allegations made by a party to the dispute. It is apparent that this request relates to the allegations Cpl. Brickner made in paras. 62-73 of her SOP where she alleges that between June 2012 and December 2014, there were 11 vacant positions of which she was not advised or selected. This request seeks to further identify what other positions might have been available during this period for which again, Cpl. Brickner was not advised or considered. I am not convinced that this additional documentation will add to Cpl. Brickner’s case in any measurable way. It is the Tribunal’s view that allowing this request may unduly delay the efficiency of the inquiry without adding any substantial probative value as the Complainant seems to already be in possession of evidence that may support her claim that she was not considered for several jobs in M Division. The Tribunal wishes to take this time to remind the parties that the Complainant need only establish that she was passed over for one position on a prohibited ground in order for the Tribunal to make a finding of discrimination.
[37] Furthermore, if she desires, Cpl. Brickner will have the opportunity to cross-examine witnesses of the Respondent about the general turnover and availability of positions during this period. However, in the interest of keeping the inquiry focused on the allegations in the SOP, further documentation under this request will not be ordered by the Tribunal.
[38] The Respondent states that it has already produced, with one exception noted below, all relevant documents in its possession regarding the staffing actions at the Corporal level between 2012 and 2014 based in Whitehorse. However, the Tribunal directs the Respondent to provide Cpl. Brickner with a list of all documents that it has already provided which it believes meets this request on or before September 15, 2017. If any new documents relevant to this request are identified, the Respondent must disclose them subject to the exception of any document that may be protected by a recognized privilege under the law of evidence. If there are any documents for which privilege is claimed, the Respondent will indicate to the other parties such documents and the privilege claimed.
[39] The exception to the documents provided relate to the General Duty Watch Commander position that was offered to Cpl. Brickner in 2012. The RCMP has undertaken to disclose the documentation relating to this staffing position. Therefore, the Tribunal orders the production of these documents and imposes a deadline of September 15, 2017, to comply. However, if the Respondent is able to comply earlier, the earlier production should be made to assist with this matter moving forward to the hearing in a timely manner. If any new such documents are identified at a later date, they will be disclosed and produced as required by Rule 6(5)(b).
[40] Cpl. Brickner also requests the General Duty Schedule, the MCU (Major Crimes Unit) Schedule and the Organizational Chart for the years 2012-2014. The RCMP has agreed to provide these documents, but it suggests that certain pieces of information Cpl. Brickner has identified in her request, namely information with respect to “restructuring, secondments and vacancies” may not be reflected in these documents. The Tribunal therefore directs the RCMP to produce the General Duty Schedules, the MCU Schedules and the Organizational Charts as they exist for the years 2012-2014 on or before September 15, 2017. The Tribunal also notes that the Complainant will have the opportunity to make specific inquiries about Cpl. Hutchings as well as any restructuring, secondments and vacancies occurring in M Division during the cross-examination of the Respondent’s witnesses.
9. All documents pertaining to the MCU staffing file (2014) for the Corporal position that has remained vacant and is still vacant. Including notes, meetings, emails and direction regarding the stopping and starting (reviews) of this job process.
· All notes, files, documents and emails relating to the 2014-03-08 MCU selection. S/Sgt. PARK advises DUNMALL “will advise of the results once the selection process has been completed. Then on 2014-04-08 “the staffing of this position is currently being reviewed by an outside source. All applicants that were part of this process and the HRMIS run.
· All notes, files, documents and emails between S/Sgt. FLYNN, S/Sgt. PARK, Sgt. WILTSE and Kurtis PILOPOW relating to their discussions to create a panel for the MCU selection. If they met, reviewed or had any discussions relating to any applications or documents (2014-10-14).
· All notes, files, documents and emails relating to the processes and efforts made by M Division to identify candidates for this position throughout 2014, 2015, 2016 and 2017.
(i) Complainant’s Submissions
[41] The Complainant argues that these documents are arguably relevant to her second allegation of retaliation. She believes they will be part of the evidence that shows she was not considered to fill this vacancy because she filed a human rights complaint against the Respondent.
(ii) Commission’s Submissions
[42] The Commission supports Cpl. Brickner’s request as it believes the documents are arguably relevant to the retaliation allegation and may demonstrate why Cpl. Brickner was not considered for this position.
(iii) Respondent’s Submissions
[43] The Respondent argues that it has already disclosed all the relevant documents in its possession relating to this staffing action. The RCMP suggests that the only documents relevant to Cpl. Brickner’s complaint are documents relating to the staffing action up to the point in time when she was advised of the decision not to offer her that position. Unfortunately, the Respondent does not indicate when that happened. According to the Complainant’s SOP, she was advised she was not successful on two occasions, November 2014 (see SOP para. 88) and again in April 2016 (see SOP para. 95.)
(iv) Tribunal’s Ruling
[44] The Tribunal finds the requested documents to be arguably relevant in the context of the retaliation complaint. The RCMP is ordered to disclose all of the requested documents related to the vacant MCU staffing file up to December 31, 2016, on or before September 15, 2017. This disclosure order is limited to documents up until this date as the Tribunal finds that later disclosure is not arguably relevant. As the RCMP did not specify the exact date upon which Cpl. Brickner was advised of the decision not to offer her that position, December 31, 2016 was selected to permit reasonable disclosure to the Complainant without subjecting the Respondent to an unreasonable, far-reaching request for documents that are not arguably relevant. To the extent that the Respondent has already disclosed some of this documentation, it is directed to provide the Complainant with a list of such documentation already submitted under this request on or before September 15, 2017. However, if the Respondent is able to comply earlier, the earlier production should be made to assist with this matter moving forward to hearing in a timely manner.
10. A copy of then Cpl. and now Sgt. Calista MCLEODs CV that was submitted for the MMIW&G positon in 2013.
(i) Complainant’s Submissions
[45] Cpl. Brickner challenges statements from the RCMP that she was considered for every position that was open during the time she sought to be transferred to M Division. She believes that by comparing her qualifications to the curriculum vitae of Sgt. McLeod, she will be able to demonstrate that her qualifications were superior. Cpl. Brickner believes this is arguably relevant to her claim that the RCMP did not intend to offer her a position because of her family accommodation request.
(ii) Commission’s Submissions
[46] The Commission also supports this request for the same reasons Cpl. Brickner provided.
(iii) Respondent’s Submissions
[47] The Respondent refuses disclosure of this document on the grounds that it is not arguably relevant to Cpl. Brickner’s allegations and because it contains personal information about a third-party not involved in this case. The RCMP alleges that Cpl. Brickner inquired about and was invited to indicate her interest in this position. However, Cpl. Brickner did not indicate any interest. She later disclosed that she was on work restrictions due to her pregnancy. Having acknowledged that she was not in a position to indicate her interest for the temporary positions aft