HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Le Blanc
Applicant
- and-
Toronto Transit Commission
Respondent
INTERIM decision
Adjudicator: Douglas Sanderson
Indexed as: Le Blanc v. Toronto Transit Commission
wRITTEN SUBMISSIONS BY
Michael Le Blanc, Applicant ) Self-represented
Toronto Transit Commission, ) Steve Lavender, Counsel Respondent )
1This is an Application filed on December 7, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a Request for Order During Proceeding filed by the applicant on July 28, 2011 to order the respondent to disclose certain documents (the “Request”). The respondent filed a Response to a Request for Order (Form 11) (“Response to Request”) on August 2, 2011.
Background
2The applicant was employed as a Dispatcher with the respondent. He states he suffers disabilities that negatively affected his attendance, but was seeking treatment with a view to improving his attendance. Rather than accommodate his disabilities, the applicant alleges the respondent discriminated against him by terminating his employment. The respondent denies the applicant suffered a disability requiring the accommodation he requested and alleges the applicant was dishonest regarding his absences and ability to perform work. The respondent asserts the applicant’s alleged dishonesty was grounds for dismissal for cause and denies any discrimination.
3Rule 16.1 of the Tribunal’s Rules of Procedure requires each party to provide to every other party a list of all arguably relevant documents in its possession and to provide a copy of each listed document, with the exception of any document for which privilege is claimed. The respondent states that it complied with Rule 16.1 on or about April 21, 2011. The applicant, however, seeks further disclosure from the respondent as follows:
a. The full medical, workplace and human resources files regarding the applicant;
b. All e-mail messages from Terry Clancy to all TTC personnel with the applicant’s name in the subject line and specifically e-mail messages exchanged between Mr. Clancy and Sean Fuller regarding the applicant’s request to adjust lighting as an accommodation.
c. All break schedules in the Transit Control Department prior to December 2009.
4The applicant explained that these documents would allow him to establish several facts, as follows:
a. The respondent did not take his request for accommodation or his disability seriously.
b. There were no disciplinary actions taken against the applicant in accordance with the progressive discipline process.
c. The applicant was never counselled in response to an “At Work Health Assessment” that indicated he had an illness which may affect his attendance.
5The respondent’s position regarding the Request is as follows:
a. The respondent has already disclosed the applicant’s complete Occupational Health file.
b. There is only one official employee file for the applicant, but the complete file is not relevant. The respondent dismissed the applicant for the reasons referred to in the dismissal letter and the respondent’s Response and not for “cumulative” misconduct over the course of his employment. The respondent has produced all arguably relevant documents from the applicant’s employee file.
c. The respondent believes all arguably relevant e-mails still in existence have been produced. The respondent will search its records again and produce any additional arguably relevant emails that it finds.
d. The schedules the applicant seeks do not exist in written form and would not be arguably relevant in any event.
Analysis
6At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.
7Given the nature of this dispute, the respondent’s Occupational Health file regarding the applicant is certainly arguably relevant, as would be any e-mail messages regarding a request for accommodation. However, the respondent states that it has disclosed the Occupational Health file regarding the applicant and all arguably relevant e-mail messages and has undertaken to produce any further arguably relevant e-mail messages it finds. The applicant has not asserted that the Occupational Health file has not in fact been produced or given any reason to believe that arguably relevant e-mail messages remain outstanding. Short of such an assertion or reasons, I see no reason to order production of these documents at this time.
8The respondent’s position in this matter is essentially that the applicant exaggerated his disability and was not truthful with the respondent regarding his absences from work in the fall of 2009. The respondent’s Response indicates that the applicant’s alleged misconduct in the fall of 2009 was the sole reason for his dismissal without regard to the applicant’s disciplinary record. Consequently, the applicant’s disciplinary record does not appear to be related to any issue in dispute in this Application and the applicant did not explain why he considers his disciplinary record, or lack thereof, to be arguably relevant. Similarly, attendance management documents regarding the applicant do not appear to be arguably relevant. While the applicant’s absenteeism forms part of the historical background of this case, the respondent did not dismiss the applicant because of absenteeism, but because of alleged dishonesty regarding his absences. The applicant did not explain why documents, or the absence of them, establishing that the respondent did not counsel him regarding an “At Work Health Assessment” are arguably relevant. I therefore find that the applicant has not established the arguable relevance of his employment file.
9The applicant also did not explain why the break schedules for the Transit Control Department are arguably relevant, assuming such documents exist in written form and could be produced. Again, I find the applicant has not established that these documents are arguably relevant.
10In light of the foregoing, the Request is refused.
Dated at Toronto, this 30th day of August, 2011.
“Signed by”
Douglas Sanderson
Vice-chair