HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Garett Bridgeman
Applicant
-and-
2035534 Ontario Ltd. o/a Rivard Cleaners Ltd. and Woo Seok Seo
Respondents
INTERIM DECISION
Adjudicator: Mary Anne McKellar
Indexed as: Bridgeman v. 2035534 Ontario
1This is an Application filed under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Registrar-Transition provided the parties with Notice of Case Resolution Conference and Required Preparation by letter dated August 28, 2009. Pursuant to that Notice, the Case Resolution Conference is set to occur on January 29, 2010. With respect to “Required Preparation”, the Notice set out deadlines by which the parties must exchange and file certain documentation. Among those deadlines was one directing the respondents to provide a copy of all arguably relevant documents in their possession to the applicant by no later than October 16, 2009.
3The applicant has advised the Tribunal that he has received no production of documents whatsoever from the respondents. He had specifically requested that certain documents be provided to him, but has had no response to that request. The applicant has made a Request for an Order During Proceedings (“RFOP”) and delivered a copy to the respondents. No reply to the ROFP has been delivered to the applicant or filed with the Tribunal.
4Rule 9 of the Tribunal’s Rules of Procedure applicable to applications under section 53(3) requires parties to disclose to the other parties all arguably relevant documents (except those protected by privilege) in their possession (Rule 9.3). A party seeking at the Case Resolution Conference to rely on a document it has not produced may be precluded from doing so (Rule 9.4).
5The applicant has alleged discrimination in employment on the basis of disability. The respondents assert that his employment was terminated for financial considerations and shortage of work.
6The documents that the applicant has specifically requested from the respondents pertain to the following statement in the Response to the Application: “The complainant was not the only employee to be dismissed due to a shortage of work”. The applicant has requested copies of ROEs (redacted to protect confidentiality) that the organizational respondent issued to other employees.
7It is somewhat unusual that the applicant seeks to compel the production of these ROEs as they do not appear to have any bearing on what he has to prove to make out a prima facie case of discrimination: namely that he suffered from a disability which the respondents knew or ought reasonably to have known about and that his employment was terminated. While there is no doubt that the ROEs are arguably relevant to an issue in this Application, because they pertain to the defence asserted by the respondents and which they bear the onus of establishing through evidence, any failure to produce documentation supporting or relevant to that defence jeopardizes their ability to establish the defence. In other words, the non-disclosure of the documents might advantage the applicant in this litigation.
8The respondents are directed to immediately deliver to the applicant copies of all arguably relevant documents in their possession (except those for which privilege is claimed), including the ROEs specifically requested in the RFOP. The respondents are reminded again that they may not be permitted to rely at the Case Resolution Conference on any documents that they fail to produce in accordance with this Decision and the Rules.
9I am not seized.
Dated at Toronto, this 15th day of December, 2009.
“Signed by”
Mary Anne McKellar
Vice-chair