Michael Kovacs v. CIM Metals Inc., 2010 HRTO 184

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Kovacs

Applicant

-and-

CIM Metals Inc.

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 26, 2010

Citation: 2010 HRTO 184

Indexed as: Kovacs v. CIM Metals

1This is an Application filed December 11, 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 (“hearing”) is scheduled for March 23, 2010. The purpose of this Interim Decision is to address a disputed request for production.

2The applicant filed a complaint with the Ontario Human Rights Commission on June 13, 2006 alleging that the respondent had discriminated against him with respect to employment because he filed a claim relating to a workplace injury.

3The applicant was hired by the respondent on January 11, 2006. He asserts that he began experiencing difficulties because the job was too physically demanding and complained of this on February 13, 2006 to Jeff McKinnon, the president of the company.

4On March 10, 2006, the applicant attended at a hospital emergency department and reported an injury that he believes he began gradually developing as a result of work. When he returned to work and reported his emergency visit, Mr. McKinnon was allegedly not pleased. He advised the applicant that he would be laid off March 17, 2006. When the applicant advised that he was restricted in the work he could do, Mr. McKinnon allegedly let him go that day.

5The respondent asserts that the applicant was hired as a probationary employee. On February 13, 2006, he was advised that the company would be purchasing a laser machine that he would be required to operate. However, due to financial concerns, the purchase was not made and the applicant was laid off for lack of work. The respondent agrees that the applicant was advised March 10, 2006 that he would be laid off the following week.

6The respondent has produced records relating to the purchase of a laser machine in 2008 and advised that there is no documentation related to the 2006 laser purchase. They also provided a copy of the applicant’s personnel file. They resist further production requests.

7The applicant seeks production of financial documents (financial records, income statements, balance sheets, bank balances, orders received and filled) of the respondent for the years 2005, 2006 and 2007 to challenge the respondent’s defence that the applicant was laid off for lack of work. He also seeks information regarding all temporary workers at the respondent in 2006. He alleges that a temporary worker was hired in February 2006 to assist him. He also asserts that the information relating to temporary workers is relevant to the issue of whether there was modified work available. Finally, the applicant requests information relating to two new employees who were hired in April and June 2006, despite the alleged lack of work.

8The respondent alleges that these requests are overly intrusive and would unduly expose the respondent’s business operations, although they did not oppose the Tribunal attending and reviewing the documents.

9The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal. Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at para 38.

10An order for disclosure does not necessarily mean that the information will be ultimately found to be admissible.

11Where a respondent raises the response that there was a lack of work, the applicant is entitled to challenge that response. Information relating to the temporary workers hired in 2006 and the new workers hired in April and September 2006 is relevant to the issue of lack of work and the availability of modified work.

12Similarly, some of the requested financial disclosure should be produced. A this stage, I am satisfied that the disclosure of the orders received and filled in 2005, 2006 and 2007 would be relevant to the alleged lack of work. I am not satisfied that all other financial records are required at this stage.

13In making this ruling, I note that the applicant has submitted records from the emergency department confirming that he attended on the morning of March 10, 2006 at approximately 8.30 a.m. The respondent agrees that they gave the applicant a lay-off notice that day. In these circumstances, where a respondent alleges lack of work, immediately following a reported work injury, but fails to provide documentation supporting such a claim, the Tribunal may draw an adverse inference on that point.

Order

14The respondent is directed to disclose the following information relating to the hiring of all temporary employees and the two new employees in 2006, including, date of hire, date of termination (if any), and duties assigned, within 15 days of the date of this Interim Decision.

15The respondent is directed to disclose documentation relating to all orders placed and filled in 2005, 2006 and 2007 within 15 days of the date of this Interim Decision.