Michael Russell v. Town of Georgina and Mary Baxter, 2009 HRTO 552

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Russell

Applicant

-and-

Town of Georgina and Mary Baxter

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 1, 2009

Citation: 2009 HRTO 552

Indexed as: Russell v. Georgina (Town)

1In this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, (the "Code"), the applicant has filed a Request for Order During Proceedings seeking two orders. First, he seeks production of e-mails between him and his former supervisor during certain dates. Second, he seeks an order that the respondent Town not fill the position from which he alleges he was dismissed in violation of the Code.

2The applicant previously requested that this Application be expedited because of his concerns about destruction of e-mails and reinstatement. This Request was dismissed: 2009 HRTO 466.

3The applicant argues that production of the e-mails should be ordered to preserve them in order to prevent any accidental loss in data storage. The Tribunal has held that absent exceptional circumstances, production orders will not be made in advance of the obligation to disclose arguably relevant documents under the Rules of Procedure: see, for example, Dube v. Ontario English Catholic Teachers Association, 2009 HRTO 132. Obviously, if the respondent Town fails to take steps to safeguard this data and is unable to produce it, this may result in an adverse inference at the hearing: see 2009 HRTO 466 at para. 7. The production Request is premature, and is therefore dismissed.

4The applicant argues that if his former position is filled, this will make it more difficult for the Tribunal to order reinstatement. He argues that the hiring of a replacement with different personal characteristics from his may constitute a continuation of the discrimination. The respondent advises that if the Tribunal orders that the applicant be reinstated, it will comply with that order.

5The Tribunal has particular rules and procedures that govern interim remedies, which are set out in Rule 23. They require the filing of declarations. However, in these circumstances the applicant's Request can be disposed of on the basis of the materials filed. The fact that a position has been filled would not preclude the Tribunal from making an order that the applicant be reinstated, should it find a violation of the Code: see 2009 HRTO 466 at para. 8. Therefore the applicant has not demonstrated that the Interim Remedy requested would be just and appropriate.

6The applicant's Requests are dismissed.

7I am not seized.