Brackenbury v. Priszm, 2010 HRTO 359

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lawrence Brackenbury

Applicant

-and-

Priszm LP by its General Partner Priszm Inc., Dave Potter, Ken Wilson and Sarjni Kumar

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 17, 2010

Citation: 2010 HRTO 359

Indexed as: Brackenbury v. Priszm

1This Application was filed on February 11, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). A hearing is scheduled for February 24, 2010. The purpose of this Interim Decision is to address the applicant’s request for production and request to process this Application together with a section 34 Application.

Production

2The test for production is not high. In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated at paragraphs 8 and 9:

The 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 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

3The respondents submit that once the applicant’s human rights complaint was received in January 2008, they did conduct an investigation into the allegations and the investigation and witness statements obtained are privileged. I accept that this is a legitimate claim of privilege.

4The respondents attached all arguably relevant, non-privileged documents from his employee files in their Response to the Request for Order, so no further order with respect to the employee file is required.

5The respondents have denied the existence of certain documents, such as the documentation relating to an alleged lock change (they deny the locks were changed) or documentation regarding Dave Potter, Tracey Seems and performance reviews. Accordingly, I will not order any production of these documents.

Processing Applications Together

6The applicant filed a section 34 Application on February 2, 2010 and asked that this application be processed together with the section 34 Application. I find that it would not be fair, just and expeditious to process the Applications together. The transitional Application is scheduled for hearing on February 24, 2010 and it is not even clear whether the section 34 Application has been delivered to the respondents yet.

7The hearing will proceed as scheduled on February 24, 2010.