Michael Kovacs v. CIM Metals Inc., 2010 HRTO 304

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: February 9, 2010 Citation: 2010 HRTO 304 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 complications arising from my previous Interim Decision, 2010 HRTO 184, ordering 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 applicant sought 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.

7The respondent alleged 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.

8In 2010 HRTO 184 I ordered the disclosure of the orders received and filled in 2005, 2006 and 2007. The respondents have since advised the Tribunal that the documents regarding the approximately 2000 to 3000 sales annually amount to some 6000 to 9000 documents and that it would be unduly costly to produce these documents. They offered to have the applicant attend and review the documents. The applicant declines to do so. The applicant also refuses to accept responsibility for the cost of the photocopying.

9The applicant suggested that the Tribunal conduct an inquiry pursuant to section 44 to review and summarize the documentation relating to the 2005, 2006 and 2007 years.

10The Tribunal will not conduct the requested inquiry. The parties are responsible for marshalling and presenting the evidence required to support their respective positions.

11Having regard to the volume of material my order entailed, and the applicant’s refusal to bear the cost of photocopying, I am prepared to revise my order. The respondent is no longer required to produce the 2005, 2006 and 2007 orders received and filed. Instead, the respondent is required to file their 2005, 2006 and 2007 corporate tax returns (Federal T2, Ontario CT23 or other relevant returns), within 7 days of the date of this Interim Decision.

12As I stated in my previous ruling, 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.