Gungor v. Canadian Auto Workers Local 88, 2010 HRTO 1709

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yavuz Gungor Applicant

• and-

Canadian Auto Workers Local 88 Respondent

INTERIM DECISION

Adjudicator: David Muir Date: August 23, 2010 Citation: 2010 HRTO 1709 Indexed as: Gungor v. Canadian Auto Workers Local 88

1This is an Application filed under section 53(3) of Part IV of the Human Rights Code R.S.O. 1990, c. H.19 as amended ("the Code") on December 12, 2008.

2The underlying complaint was commenced on April 1, 2005 and alleges discrimination in the areas of contract and employment on the basis of disability.

3This Interim Decision will address a Request for Order During Proceeding (Request) seeking the production of documents and notes related to the settlement of a companion complaint with respect to alleged violations of the Code by the applicant's employer. The documents contemplated by this Request made of both the employer and the applicant include draft offers to settle, prior drafts of the minutes, notes made of the settlement discussion, pre-settlement letters and emails between the employer's counsel and applicant's counsel. The respondent union was not a party to the settlement and apparently took no part in the settlement of the matter although invited to do so.

3The companion matter was settled on the basis of, amongst other consideration, a sum of $25,000. The respondent states that sum paid to the applicant was a global sum and does not "characterize the pre-settlement negotiations that would have laid out exactly what this amount covers". The respondent states that these documents are relevant to any assessment of further damages that might be owed to the applicant.

4The applicant's employer has consented to the request and will produce the documents requested to the extent that they exist. The applicant's employer states that the documents are arguably relevant to the issues raised in the Application.

5The applicant does not consent to the production of the documents in question. The applicant makes a number of arguments about the privilege that attaches to settlement discussions which are not controversial. It is also the case however that in certain narrow circumstances such documents may be the subject of a production order.

6I find that it would not be appropriate to Order the production of this material because I am not satisfied at this stage that it is arguably relevant to the issue of potential damages owing to the applicant. The respondent states that because the amount the parties agreed to was a global sum it is not clear what that amount was thought to cover and the production of the parties notes, etc, is required to clarify that issue.

7There are several fundamental problems with this submission. First, the respondent union was not party to the prior settlement and did not participate in the discussions leading to it. The settlement relates solely to the complaint made against the employer and presumably represents the valuation the parties placed on resolving that dispute. Second, there is no evident overlap in remedies being sought here and what might have been in play in the prior settlement. The applicant is not seeking lost wages such that even if such a claim could be made against the union, there appears to be no potential for double recovery.

8Aside from these considerations the value that the employer and the applicant might have placed on the resolution of their dispute, albeit closely linked with the instant matter, is not material to the consideration of any remedy that might be awarded to the applicant should he establish liability. This is so for a number of reasons not least of which is that the allegations made against the union are not the same as those made against the employer reflecting the union's different obligation under the Code. Accordingly the remedial consequences of a potential violation by the union are likely to be different.

9I am also not persuaded that whatever might have informed the parties positions on the sum agreed to can in any way be material to a determination of the liability of the respondent. An agreement on the quantum of a monetary settlement typically reflects the parties thinking taking into account a host of factors. In theory the agreed quantum might bear some relation to what might have been ordered after a hearing, but such a connection is indirect and often tenuous. At the end of the day the information the respondent is seeking would amount to little more than the parties' opinions about the worth of settling their dispute including their thinking about factors having only a tenuous link to the actual consequences of a Code violation.

10For all of these reasons I find that the documents being sought are not arguably relevant to any issue raised in this Application. This decision is not a determination of the arguable relevance to any potential remedial issues of the fact that the applicant has settled the companion complaint for a substantial sum.

11I am not seized.

Dated at Toronto, this 23rd day of August, 2010.

"Signed By"

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David Muir Vice-chair