Macdonald v. Toronto District School Board, 2009 HRTO 1973

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruce Macdonald

Applicant

-and-

Toronto District School Board, Gerry Connelly, Penny Mustin, Jean Shaw, Ian Allison, Andrea Alimi and Peter Chang

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: November 20, 2009

Citation: 2009 HRTO 1973

Indexed as: Macdonald v. Toronto District School Board

1The applicant, an elementary school teacher with the respondent, the Toronto District School Board (“TDSB”), filed an Application pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against him on the basis of disability and engaged in reprisals in respect of employment during the period from 2004 through 2008. Among other things, the applicant asserts that he experienced discrimination in scheduling, discipline, comments, and in being denied necessary accommodations in the workplace.

2On June 10, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 808, granting the applicant’s request to amend the Application.

REQUEST TO AMEND THE INTERIM DECISION

3On September 15, 2009, the applicant filed a Request for an Order During Proceedings (“Request”), essentially asking the Tribunal to amend its Interim Decision of June 10, 2009. He does not dispute the conclusion reached by the Tribunal, but seeks to add details to the paragraph of the Interim Decision which summarizes the issues raised in the Application.

4In the normal course, if a party wishes the Tribunal to reconsider a decision, it should file a Request for Reconsideration.

5I recognize that, in some circumstances, interim decisions may properly be the subject of a reconsideration request (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34.) In the circumstances of this case, however, given that the applicant does not ask the Tribunal to alter its decision, I do not feel the applicant’s Request gives rise to a reconsideration, as contemplated by the Tribunal’s Rules of Procedure (“Rules”).

6The conclusions reached in the Interim Decision are not in dispute. In the circumstances, the remedy requested by the applicant in the Request is not necessary for the parties to have a fair, just and expeditious resolution of the merits of the Application. The applicant’s Request is denied.

REQUEST FOR INTERIM REMEDY

7The applicant filed a Request for Interim Remedy on September 16, 2009. He seeks to be reinstated to the Employee Services-Directed Paid Leave pending the Tribunal’s decision.

8The respondents object to the relief requested by the applicant and argue that he has not provided sufficient evidence to justify his claim for an interim remedy.

9Granting an interim remedy is an extraordinary step. It involves requiring the respondents to take certain actions prior to a hearing on the merits of the Application.

10The conditions for awarding an interim remedy are set out as follows in Rule 23.2:

The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

11In TA v. 60 Montclair, 2009 HRTO 369, at para. 23, the Tribunal held that the fundamental consideration in determining whether to award an interim remedy is:

whether an interim remedy is necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found.

12The Tribunal in TA v. 60 Montclair, supra, also noted that an applicant seeking an interim remedy will have a significant onus to meet to demonstrate that the Request meets the three elements in Rule 23.2 and is necessary to further the remedial objects of the Code. See also Kwan v. Hospital for Sick Children, 2009 HRTO 621.

13In my view, the balance of convenience or harm does not favour the applicant and it would not be just and appropriate to grant the remedy requested. For the reasons that follow, I find that it is not appropriate to grant the Request for Interim Remedy in the circumstances.

14According to Rule 23.3:

A Request for an Interim Remedy must include:

a) a detailed description of the order sought;

b) one or more declarations signed by persons with direct first-hand knowledge detailing all of the facts upon which the Applicant relies; and

c) submissions with respect to the merits of the Application, the balance of harm or convenience and why an interim remedy would be just and appropriate in the circumstances.

15The applicant has indicated that TDSB initially terminated his wages and benefits in February 2009. A week later, TDSB assigned the applicant to employee services-directed paid leave, back-dated into January 2009. At the time he filed a Request for Interim Relief, the applicant indicated he would know by approximately September 17, 2009 whether his wages and benefits would be terminated.

16The applicant received a letter from TDSB, dated September 23, 2009. The letter states:

On August 31, 2009 we couriered a letter to your home advising that you had been placed at Orde Street PS into an Interim position, effective September 8, 2009. To date you have not reported to this placement as advised.

A medical note or leave of absence without pay form is required to support your absence from this period of time [sic] September 8 to 27, 2009….

Please be advised that effective September 28, 2009 you pay will be stopped unless we receive a doctor’s note or leave of absence form.

17Based on the materials filed with the Tribunal, the applicant does not appear to have provided the documents requested by TDSB. The applicant has indicated that TDSB stopped paying his wages as of October 15, 2009.

18I have serious concerns about issuing interim relief based only on the information filed by the applicant. Even if I concluded it would be appropriate for me to consider the appropriateness of the wage stoppage, in the circumstances, there is not sufficient direct evidence to allow me to evaluate whether there is a medical reason for the applicant’s absence from work.

19I am not convinced that the balance of convenience favours granting the Request or that granting the Request is necessary to ensure the Tribunal can provide a full, effective and appropriate remedy should the Application be decided in favour of the applicant.

20Accordingly, the Request for Interim Relief is denied.

RESPONDENTS’ REQUEST TO DISMISS

21The respondents filed a Request for an Order During Proceedings seeking the dismissal of the Application because it is frivolous and vexatious. They also argue that the Application should be dismissed because the applicant submitted what they say is fraudulent medical evidence in support of his claims.

22Prior to amendments which came into effect on June 30, 2009, the Code permitted the Ontario Human Rights Commission to not deal with complaints on the basis that they are frivolous, vexatious or made in bad faith. These provisions of the Code are no longer applicable. Rather, the Code now states that where an application is within the Tribunal’s jurisdiction, the Tribunal must provide the parties with an opportunity to make oral submissions before making a final determination. (See s. 43(2)1 of the Code.)

23I have considered whether the Application is within the Tribunal’s jurisdiction. I find that, on the face of the documents filed with the Tribunal, the Application contains allegations which fall within the Tribunal’s jurisdiction to decide.

24The allegations that the medical documents submitted are fraudulent are, in my view, best determined at the hearing of this matter. At this stage of the proceedings, I am not able to determine this issue based on the written material before me. In any event, I am not convinced that, even if the medical documents are not bona fide, this would necessarily lead to an early dismissal under the Code.

REQUEST FOR PRODUCTION OF DOCUMENTS

25From about mid-September to early October, the applicant filed almost daily Requests for Orders During Proceedings in which he is seeking production of various records.

26Generally speaking, the applicant’s requests for production deal with the following broad categories of records:

a. TDSB policies and procedures;

b. information relating to all TDSB employees’ (including managers and superintendents) professional qualifications;

c. an organizational chart for TDSB;

d. accommodation plans for other teachers employed by the TDSB; and

e. personal information concerning the applicant, which the applicant believes is held by personal respondents and other employees of TDSB.

27The respondents object to the requests on the grounds that the requested records are not relevant to the proceedings and, in the case of TDSB’s policies and procedures, on the basis that these documents are otherwise available to the applicant.

28In the circumstances, I think it is important to provide the parties with some direction on disclosure obligations. The Tribunal’s Rules provide for an ongoing disclosure obligation on all parties to a proceeding to disclose any documents or records that are arguably relevant to the proceedings. Both parties to this matter are bound by these Rules.

29Rule 16 states:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

30The notion of “arguably relevant” has been considered by the Tribunal in a number of cases, notably in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1. In that decision, the Tribunal stated that:

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…

31A finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing. 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.

32Based on the materials filed before me, I find that the following categories of documents are arguably relevant to these proceedings. Documents falling within these categories should be disclosed to the applicant in accordance with the Rules:

a. Any TDSB policies and procedures that arguably relate to the allegations contained in the Application, including policies regarding scheduling, discipline, harassment and accommodation in the workplace. I understand these documents are available on an intranet, however Rule 16 requires a party to provide actual copies of documents that are arguably relevant to the proceeding. The respondent is directed to provide copies of any such documents to the applicant. I stress, however, that not all of TDSB’s policies and procedures will be arguably relevant to the Application and only those policies that arguably have some bearing on the issues raised in the Application need be provided to the applicant.

b. Any documents within the possession of the personal respondents and TDSB and its employees (in their professional capacity), including personal information regarding the applicant, that are arguably relevant to the allegations contained in the Application. This would include such documents or records relating to the applicant and discipline, scheduling, harassment and accommodation in the workplace. There appears to be a dispute regarding whether the respondents and other employees of TDSB have collected personal information concerning the applicant. In the context of this proceeding, the respondents’ obligation to disclose does not extend to every record it or its employees have regarding the applicant. It may be that the applicant can invoke other statutes to seek access to such documents, but the disclosure obligation in this proceeding is limited to what is arguably relevant to the Application.

c. An organizational chart for TDSB, if one exists. The respondent, TDSB, is not required to create a record in order to comply with the Rules.

33I find that the following category of documents is not arguably relevant to these proceedings:

The personal information requested by the applicant concerning the professional qualifications of TDSB employees and accommodation plans prepared for TDSB employees. Without deciding the issues that may arise in the future in this matter, I would suggest to the parties that personal information of this nature is very rarely relevant to allegations such as those contained in the Application.

34Accordingly, the respondents will provide the applicant with copies of documents which fall into the categories identified in paragraph 32 in accordance with the Rules.

35I am not seized of this matter.