Henry v. Faurecia Automotive Seating Canada Ltd., 2008 HRTO 30

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ron A. Henry

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Faurecia Automotive Seating Canada Ltd. and Lynne Lyon

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: May 13, 2008 Citation: 2008 HRTO 30 Indexed as: Henry v. Faurecia Automotive Seating Canada Ltd.

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Faurecia Automotive Seating Canada Ltd. and ) Robert W. England, Lynne Lyon, Respondents ) Counsel

Ontario Human Rights Commission ) Allyssa Case, Counsel

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H. 19, as amended (the “Code”), alleging that the respondents discriminated against the complainant in employment on the basis of disability contrary to sections 5 and 9.

2Prior to filing their pleadings, the respondents requested the production of certain documents from the complainant. The complainant and Commission disputed the request, and the respondents therefore sought an order from the Tribunal compelling production of the documents.

3Submissions and argument on the dispute were made in writing and extensive authorities provided. I have considered them all.

BACKGROUND

[4] The parties agree that:

• the complainant commenced employment with Faurecia Automotive Seating Canada Ltd. (“Faurecia”) on September 7, 2002;
• that from time to time, the complainant was unable to perform the job duties of his position because of a back injury;
• that the complainant last actively worked for Faurecia during the week of July 6, 2002; and,
• that Faurecia terminated his employment on October 17, 2002.

5It is agreed that on or around July 22, 2002 the complainant applied for long term disability benefits (“LTD benefits”) through Faurecia’s insurance company, Clarica Life Insurance Company, its successor being Sun Life Assurance Company (“Sun Life”).

6The parties agree that on or around September 26, 2002 the complainant was informed that his application for LTD benefits had been denied for the reason that the complainant was not disabled to the extent required by the terms of the insurance policy and, therefore, was not entitled to LTD benefits.

7It is agreed that on or around September 24, 2003, the complainant brought suit against Sun Life seeking, among other things, a declaration that he had been disabled within the meaning of the insurance policy since August 1, 2002 and that the parties to the suit subsequently reached a settlement.

8The respondents seek an order that the complainant “produce any and all documents in his possession, including documents produced and received by way of documentary discovery, examination for discovery, transcripts and materials pertaining to settlement in the civil action that he instituted against Sun Life. The respondents also ask for an order compelling Sun Life to produce those same documents”.

DETERMINATION

9The respondents’ request for production of documents is dismissed.

ANALYSIS

10The Commission alleges that the respondents terminated the complainant’s employment without first determining whether he could be accommodated to the point of undue hardship. An assessment of compliance with the duty to accommodate includes both procedural and substantive dimensions.

11The documents requested by the respondents must be assessed for their “arguable relevance” to the issues in dispute. To succeed, the respondents “must demonstrate a nexus between the information or document sought and issues in dispute before the Board.” See: Biederman v. Banfi (2000), 2000 CanLII 49403 (ON HRT), 38 C.H.R.R. D/395 (Ont. Bd. Inq.) at para. 14.

12After considering the issues in dispute, the nature of the documents sought and the materials before me at this point in time, I find that the documents requested by the respondents are not arguably relevant to deciding whether the respondents met their obligations under the Code. The documents in question involve the insurance litigation. The issue in dispute in that proceeding was entitlement to LTD benefits. The determination of LTD entitlement is irrelevant to the question of whether the respondents considered or took steps to accommodate the complainant.

13While the terms of the settlement in the insurance litigation would be relevant to the determination of an award for special damages I note that the complainant is not seeking special damages.

14While the complainant’s application for LTD benefits where he makes various representations about his ability and disability to work may also be arguably relevant, that document is already in the hands of the respondents.

15The respondents refer to Christian v. Northwestern General Hospital (1993), 1993 CanLII 16511 (ON HRT), 20 CHRR D/492 (Ont. Bd. Inq.); upheld 1993, 1993 CanLII 16421 (ON CTGDDC), 20 CHRR D/498 (Ont. Div. Ct.), in which the then Board of Inquiry considered what degree of disclosure was required of the Commission to meet the duty of fairness. It addressed the “fruits of the investigation” principle holding that this aspect of R. v. Stinchcombe (1991), 68 C.C.C. 93rd) 1, applied to proceedings under the Code even though Stinchcombe was decided in the context of an indictable offence. However, this principle has no application to the determination of this request for documents. The documents requested never formed part of the Commission’s investigation and, therefore cannot be considered part of the “fruits of the investigation”.

ORDER

16The respondents’ request for production is dismissed. I am not seized of this matter.