George Berger v. City of Toronto and Frances Nunziata, 2010 HRTO 419

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Berger

Applicant

-and-

City of Toronto and Frances Nunziata

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 24, 2010

Citation: 2010 HRTO 419

Indexed as: Berger v. Toronto (City)

1This Application was filed under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a disputed request for production. The hearing in this matter is scheduled to commence on March 2, 2010.

2One aspect of the alleged discrimination relates to four competitions to which the applicant applied and was unsuccessful. The applicant seeks production of the job competition files in their entirety.

3The respondents assert that the request is overly broad and they have produced the arguably relevant portions of the competition files.

4With respect to the Senior Project Analyst position, the corporate respondent received nine internal applications and 30 external applications. Five candidates, not including the applicant, moved to the interview phase. The corporate respondent states that it has provided the relevant documents regarding those five candidates and that nothing further from the competition is arguably relevant.

5With respect to the Committee Administrator Position, the corporate respondent received 14 internal applications and 73 external applications. Nine candidates advanced to the interview phase. The corporate respondent states that it has provided the relevant documents regarding those nine candidates and that nothing further from the competition is arguably relevant.

6With respect to the Division Coordinator position, three candidates, including the applicant, moved to the interview stage. However, none of the candidates obtained the passing score of 70% and the position was not offered to anyone. Therefore, the corporate respondent asserts that no part of the competition file is arguably relevant.

7With respect to the Senior Cultural Development Officer position, the corporate respondent received six internal applications and 104 external applications. Three candidates, not including the applicant, moved to the interview phase. The corporate respondent states that it has provided the relevant documents regarding the three candidates and that nothing further from the competition is arguably relevant.

8The test for ordering production is as set out in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 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.

9I agree that the respondents have provided the arguably relevant documents relating to the Senior Project Analyst, the Committee Administrator and the Senior Cultural Development Officer position and are not required to disclose the entire competition files at this time. With respect to the Division Coordinator position, I find that the assessment tests of the three candidates, including the applicant, are arguably relevant and should be disclosed immediately. The respondents may redact any confidential information.

10The adjudicator hearing this matter may further consider the request for further information from the competition files, after hearing the respondents’ evidence.