Pais v. Rona Ontario Inc., 2010 HRTO 1124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lester Pais

Applicant

-and-

Rona Ontario Inc.

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: May 19, 2010

Citation: 2010 HRTO 1124

Indexed as: Pais v. Rona Ontario

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 4, 2009, alleging discrimination in employment on the ground of disability, race, colour, ancestry, place of origin, and ethnic origin. A hearing is scheduled for June 29 and 30, 2010. A teleconference was held on May 18, 2010, to clarify issues in advance of the hearing and to deal with disclosure issues arising before the hearing.

2The applicant is self-represented. He did not check off the box next to “age” on the list of grounds of discrimination on the Application. The Application does not specifically allege that age was one of the reasons why the applicant’s employment was terminated. However, his attached written narrative mentions terminations based on age as well as race.

3There are two issues in respect of this Application. The Application focuses largely on the termination of the applicant’s employment. However, the Application form and the applicant’s written narrative raise another allegation that might, if proven, breach the Code. Specifically, he alleges that the respondent denied a transfer that he requested because of an alleged disability. If all necessary elements are proven, this allegation could on its own result in a finding of breach of s. 11 of the Code, in the absence of a finding that s. 11(1)(a) or (b) applies. In addition, it is not clear at this stage what, if any, connection might exist between the alleged denial of the transfer and the eventual termination of employment.

4The term “disability” is defined in the Code as follows:

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

5The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, [2000] 1 S.C.R. 665, 37 C.H.R.R. D/271, 2000 SCC 27.

6The applicant has at this point provided no medical evidence related to the alleged disability.

Request for records

7In the Application, the applicant requested a list of all employees terminated from stores 522 and 514 and the age and race of these employees. By a Request for an Order during Proceedings, the applicant requested a list (first name and last initial) and ages of all employees terminated in 2008 and 2009 in all Toronto and surrounding area stores. He also requested the location of the store to which a named employee formerly at store 522 was transferred. Finally, he requested the number of employees hired by respondent in 2009 and 2010 in all Toronto and surrounding area stores.

8The respondent questioned the breadth of the requested information as well as the relevance of this information to the Application. The respondent also raised privacy concerns.

9It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at para. 8, this is a relatively low threshold for the requesting party to meet.

10I have decided not to order disclosure of the requested information about the location of the transfer, as the respondent does not dispute that the transfer occurred.

Evidence and Witnesses

11The respondent stated that the materials filed by the applicant in preparation for the hearing did not reach it until May 17, 2010. If the applicant files documentary medical evidence or calls a witness in regard to his disability, this evidence will obviously also be filed late. The applicant believes that some of the respondent’s materials may also have reached him later than provided for in the Tribunal’s Rules of Procedure. Any objections raised by either party to another party relying on evidence produced late will be dealt with at the hearing.

12The applicant may wish to issue a summons to a witness (Ms. Victoria Morin) formerly employed by the respondent. To this end, the applicant may add to his Request in respect of amending the Application a request that the respondent disclose the witness’s last known address.

ORDER

13During the teleconference, the parties reached agreement on some points, and I made rulings on others. The following Order incorporates both:

a) If the Applicant wishes to allege discrimination on the basis of age in respect of the termination of his employment, he will file with the Tribunal and send to the respondent as soon as possible a Request for an Order During Proceedings seeking to amend the Application to add the ground of age.

b) If the applicant wishes to issue a summons to Ms. Victoria Morin, he will add to his Request in respect of amending the Application a request that the respondent disclose of the witness’s last known address.

c) On or before June 2, 2010, the respondent will provide the applicant with the following written information concerning employees in its retail stores: the number of employees terminated without cause from Stores 514 and 522, and the race of these employees (using best efforts to gather the race information).

d) On or before June 2, 2010, the respondent will provide the Tribunal with the following written information concerning employees in its retail stores:

i) the number of employees terminated without cause in 2008 and 2009 from Stores 514 and 522, and the age and race of these employees (using best efforts to gather the race information);

ii) the number of employees terminated without cause from its stores in Scarborough and Toronto, and the age of these employees.

e) The respondent will notify the applicant as soon as possible if it decides not to call any witness that it has indicated it will call at the hearing.

Further teleconference

14The Registrar will schedule a further case management teleconference during the week of June 14, 2010 to deal with the questions of the amendment of the Application, any further disclosure and issues concerning witnesses, if any.

15The applicant may wish to consult the Applicant’s Guide and the Guide to Hearings before the Tribunal, both available on the Tribunal’s website, www.hrto.ca, or from the Registrar. Pages 2 – 3 of the Applicant’s Guide set out sources of assistance that may be available to him, including advice that may be available through the Human Rights Legal Support Centre.