HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Davies Koech
Applicant
-and-
Cargill Limited, Doug Hayes, Lorri Allard and Tracy Barker
Respondents
Davies Koech
Applicant
-and-
United Food & Commercial Workers Canada, Locals 175 and 633,
Richard Wauhkonen and John Christopher Watson
Respondents
INTERIM DECISION
Adjudicator: Kaye Joachim
Indexed as: Koech v. Cargill Limited
1These Applications were filed October 14, 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”). A Case Resolution Conference is scheduled for July 20, 2009 to deal with Requests by the respondents for early dismissal. However, the parties were also directed to file their complete statements of facts and remedy, and make complete disclosure, in order that the preliminary Requests could be dealt with in light of a complete evidentiary record.
2The purpose of this Interim Decision is to deal with the applicant’s Request for production. The respondents both requested this Request be deferred until after the Requests for early dismissal are decided. The respondents also asked that the production Request be heard orally. If the Tribunal proceeded based on written submissions, they reserved their right to make fuller submissions and submit relevant case law.
3In its Notice dated March 10, 2009, the Tribunal set a schedule for the exchange of written submissions on the issue of production. I am satisfied this Notice provided adequate notice of this proceeding and sought the parties’ full written submissions, including relevant case law, on the production Request. If the respondents failed to provide their complete submissions or authorities they must bear the consequences of that choice.
4To ensure that the full factual context is available for the preliminary hearing, I have determined it is appropriate to decide the production Request now.
5I will briefly describe the Applications and the Requests for early dismissal in order to give context to the production request. For ease of reference, the respondents in file T-0420-08 will be referred to as the “employer respondents” and the respondents in file T-0421-08 will be referred to as the “union respondents.”
6The applicant alleges that his employment was terminated because of his race and colour and that the union respondents’ failure to take his grievance forward was also because of his race and colour.
7The employer respondents assert that they had cause to dismiss the applicant for a specific incident. The union respondents assert that they decided not to take the applicant’s grievance to arbitration was based on the weakness of the grievance. The applicant asserts that he was not the person involved in the incident.
8The basis for the respondents’ request for early dismissal is that the substance of the Application has been appropriately dealt with through the grievance process, in which the union decided not to refer the grievance to arbitration, and also through a duty of fair representation complaint which was subsequently withdrawn by the applicant. They also allege that the applicant has failed to make out a prima facie case of discrimination. In addition, the union respondents assert that the Application is trivial, frivolous, vexatious and/or in bad faith.
9The applicant has sought production from both respondents of all letters of termination issued in 2006 and 2007, including letters of termination for the same incident that the applicant is alleged to have engaged in; the number of appeals in 2006 and 2007; the number of grievances taken to arbitration in 2006 and 2007 against the respondent employer and the written submissions to the president of the union stating the reasons for not proceeding to arbitration.
10The employer respondents and the union respondents resist production of the termination letters on the basis that they are not arguably relevant and/or they would disclose private information about other employees.
11I find that that the applicant’s request for confirmation of the number of persons terminated for the same incident as the applicant in 2006 and 2007 is arguably relevant to this proceeding. The employer respondents asserted in their Response that they have terminated other employees for the same incident. The respondent employer is ordered to confirm to the Tribunal and the parties, the number of persons, if any, terminated for the same incident as the applicant in 2006 and 2007. To clarify, the dates pertain to individuals who either received termination notices during 2006 and 2007 for the same incident or who subsequently received termination notices if the event occurred during 2006 and 2007.
12Depending on the information produced, the Tribunal may require the respondent employer to disclose further details of those terminations.
13I find that the applicant’s request for number of appeals made by union members against decisions of the union respondent not to proceed to arbitration against the employer respondent and the number of grievances taken to arbitration by the union respondent is not arguably relevant to the allegations of discrimination by the union.
14The “written submissions of President” apparently refers to the Grievance Appeal Committee’s report to the President of the Union making a recommendation on whether or not to grant an appeal by the applicant to have his grievance referred to arbitration. There is no doubt that the report on the applicant’s appeal is relevant to his allegation of discrimination by the union respondents.
15The union respondents assert privilege over this document on the basis of longstanding arbitral jurisprudence that establishes that privilege attaches to all communication made in the course of the grievance procedure. As the union respondents did not submit any case law, I am not satisfied that the alleged privilege applies in the context before me. Alternatively, the union respondents submit that case by case privilege ought to be extended to the Grievance Appeal Report. I am not satisfied that the Wigmore criteria are applicable in the particular case before me.
16Whatever privilege attaches to the grievance procedure in other contexts, when what occurred during that procedure forms the basis of the alleged discrimination, it does not apply. By analogy, there is a well established privilege with respect to settlement discussions, but when the issue in dispute is whether the settlement was achieved by duress; the decision-maker must hear what is otherwise privileged communications.
17The employer respondent is ordered to confirm to the Tribunal and the parties, the number of persons, if any, terminated for the same incident as the applicant in 2006 and 2007, within 20 days of the date of this Interim Decision.
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