Forrest v. Ontario (Lottery and Gaming Corporation), 2009 HRTO 224

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerald Forrest

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March 3, 2009

Citation: 2009 HRTO 224

Indexed as: Forrest v. Ontario (Lottery and Gaming Corporation)

1This is an Application filed September 19, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a disputed production request. The Case Resolution Conference is scheduled for May 6 and 7, 2009 and the deadlines for voluntary disclosure have passed.

2The applicant asserts that the respondent’s submissions were filed one day late and ought not to be considered. While Tribunal deadlines should be respected and parties should not assume that they can disregard deadlines with impunity, it is the rare case that missing a deadline by one day would cause the Tribunal to refuse to consider submissions received late in such circumstances. I reject the applicant’s request and I have considered the respondent’s submissions.

3The applicant alleges that the respondent failed to accommodate his graduated return to work following a serious ankle injury and that upon his return to full duties in June 2006 his employment was terminated. The applicant alleges that the fact that he had taken six weeks sick leave played a role in the respondent’s decision to terminate his employment. The respondent alleges that they decided to terminate the applicant’s employment for a variety of reasons, including performance issues and some restructuring/re-organizing initiatives. They chose to terminate the applicant’s employment “without cause” and offered compensation in lieu notice of termination.

4The applicant has requested an order for production of all documents related to the restructuring/re-organizing initiative which may have related to the decision to terminate the applicant’s employment. The respondent agreed to provide such documents with respect to the late winter or early spring of 2006. The applicant did not file any objection in reply to the respondent’s offer to disclose and I find that the documents offered satisfy the applicant’s request.

5The applicant has also requested an order for production of the names and contact information for all persons hired in 2005 and 2006, promoted from part-time to full-time positions, or promoted from technical to supervisory positions, and all persons demoted, moved from full-time to part-time, or terminated in 2005 and 2006 and their sick leave records. The applicant asserts that this information is required, in the absence of an investigation by the Ontario Human Rights Commission, to enable the applicant to ascertain whether there was a general pattern of discrimination against persons based on their sick leave record. The respondent asserts that the requested production is not arguably relevant, and amounts to a “fishing expedition.” The respondent notes that the complaint does not raise allegations of systemic discrimination on the basis of disability. The applicant replies that the documents are arguably relevant to establish the alleged differential treatment of the applicant in this specific case. The applicant also confined his request to those employees in technical or supervisory technical positions.

6I am satisfied that some disclosure of the persons chosen by the respondent to be “downsized” or moved around by the respondent during this restructuring is arguably relevant to the issue in this Application. For example, it would be highly relevant if ten persons were downsized at that time, and all ten persons were on sick leave at the time of the termination. However, I find that the applicant’s request is overbroad. I order the respondent to identify (anonymously) anyone in a technical or technical supervisory position whose employment was terminated without cause, who moved from part-time to full-time or who moved from full-time to part-time from late winter to June 2006 (or whenever the restructuring was completed) together with an indication whether the person had, in the previous year, taken a sick leave of two weeks or more. There is no need to identify the name of the person or provide contact information at this stage. The respondent shall have 21 days from the date of this Interim Decision to compile and disclose this information. Depending on the information disclosed, the applicant may apply to the Tribunal for a further order requiring disclosure of the names and contact information.