Richard Handorf v. Babcock and Wilcox Canada Ltd. and United Steelworkers Local 2859, 2009 HRTO 797

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Handorf

Applicant

-and-

Babcock and Wilcox Canada Ltd. and United Steelworkers Local 2859

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: June 9, 2009

Citation: 2009 HRTO 797

Indexed as: Handorf v. Babcock and Wilcox Canada

1The applicant filed an Application on November 6, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2The respondents requested early dismissal on the basis that the Application is untimely and that another proceeding has appropriately dealt with the substance of the Application. The matter has been scheduled for a hearing on June 26, 2009 to deal with the following preliminary issues:

(i) Has the Application been made within one year of the incident to which it relates? If not, should the Tribunal accept it on the basis that the delay was incurred in good faith and no substantial prejudice will result to any person affected by it as permitted by s. 34 of the Code?

(ii) Should the Application be dismissed under s. 45.1 of the Code, in whole or in part, on the basis that prior arbitration and Ontario Labour Relations Board proceedings have appropriately dealt with its substance?

3On May 7, 2009 the applicant filed a Request for Order During Proceedings seeking production of documents. Both the union and employer oppose the Request. The parties agreed that the Request be decided in writing prior to the preliminary oral hearing. For the reasons that follow, I am declining to grant the production Order the applicant seeks.

4The applicant’s request is that the respondents produce all attendance records from the applicant’s period of employment, between August 22, 1994 and November 2003. He further requests production of the notes of an OLRB assistant mediator and a private arbitrator relating to the testimony of a number of co-workers at a mediation held in 2003.

5The respondents oppose the Request on the basis that the documents sought are (1) not arguably relevant to these proceedings; (2) privileged and therefore not compellable; and (3) not in either of the respondents’ possession and would need to be sought from the mediator and/or arbitrator in question.

6In most circumstances, documents not in the possession of the party from whom they are sought cannot be ordered to be produced by that party. On this basis alone, the applicant’s request must fail. However, even if the documents were in the possession of the respondents, I would not have ordered production due to privilege and the importance of respecting the confidentiality of other proceedings. The Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A., as amended, contains an express prohibition on compelling evidence from mediators appointed under the Act (s. 120(2)).

7If there are individuals whom the applicant believes have relevant information that speaks to the question of delay or whether other proceedings have appropriately dealt with the substance of this Application, he should call those individuals as witnesses at the preliminary hearing, in accordance with the Rules of the Tribunal.

8Regarding the applicant’s request for attendance records, it seems to me that these may be both arguably relevant and producible in any hearing on the merits of this case. I am not persuaded, however, that the records are relevant to the hearing of the preliminary issues. Therefore, while I am not making the order at this point, depending on the outcome of the preliminary hearing, the applicant is at liberty to raise his request for production of the attendance records following the decision on the preliminary issues.

9I am not seized.