Santonato v. United Food and Commercial Workers, 2009 HRTO 1858

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Santonato

Applicant

-and-

United Food and Commercial Workers Union, Local 12R24 and Rob Edwards

Respondents

AND B E T W E E N:

Mark Santonato

Applicant

-and-

Brewers Retail Inc., Mark Lynch and Mike Nichol

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: November 3, 2009 Citation: 2009 HRTO 1858 Indexed as: Santonato v. United Food and Commercial Workers

1These Applications were received on November 13, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). A case resolution conference is scheduled for November 18 and 19, 2009. The purpose of this Interim Decision is to address the applicant's request for production.

2The Application relates to the termination of the applicant's employment and the union's decision not to proceed to arbitration. The applicant alleges that both sets of respondents discriminated against him on the basis of disability.

3The applicant requested production of any communications between the union and the employer with respect to the applicant, copies of medical evidence provided by the applicant to the union and copies of all minutes of meetings between the applicant and the union. The union responded that it had provided all communications with the employer, copies of medical evidence provided to it by the applicant and all minutes of meetings with the applicant, except those for which it claimed privilege including notes taken in anticipation of litigation including legal counsel notes and opinion.

4The Tribunal will not order the union to produce documents it asserts it has already produced.

5With respect to the claim for privilege, the applicant asserts that he waived any solicitor client privilege. The union responded that it (and not the applicant) is the client in its dealings with its counsel, and it does not choose to waive privilege over its communications with its counsel.

6The Statutory Powers Procedure Act, R.S.O., 1990, c. S. 22 bars the Tribunal from ordering disclosure of privileged documents (sections 5.4(2) and 15(2)(a)). The documents over which the union claims privilege appear to fall within the traditional solicitor-client privilege, as I accept that the union, not the applicant is the client of the legal counsel.

7The request for production is denied.