Khandaswami v. Noma Cable Tech, 2011 HRTO 206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bala Khandaswami

Applicant

-and-

Noma Cable Tech Ltd., Gentoma Company, GenTek Inc., Mel Godfrey, John McLarty and Kenneth Siddall

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 28, 2011

Citation: 2011 HRTO 206

Indexed as: Khandaswami v. Noma Cable Tech

WRITTEN SUBMISSIONS BY

Bala Khandaswami, Applicant ) Farah Malik, ) Counsel

Gentoma Company and GenTek Inc., ) Derek L. Rogers, Respondents ) Counsel

INTRODUCTION

1This is an Application dated May 19, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying human rights complaint (the "Complaint") was filed with the Ontario Human Rights Commission on March 30, 2006. The applicant alleges that his right to be free from discrimination in employment on the basis of colour, ethnic origin, race and disability has been infringed by the respondents. Amongst other complaints the applicant alleges that his employment was ended by the respondents in violation of the Code. Amongst other remedies the applicant seeks lost wages and benefits for the years 2005 to 2009 and potentially further.

2This Interim Decision deals with a Request for Order during Proceeding (Request) filed by the respondents. In the human rights complaint underlying this Application. The respondents seek production of all of the applicant's records arguably relevant to his efforts to mitigate his losses flowing from the termination of his employment. The respondents state that it is their belief that, rather than look for alternative employment, the applicant has been engaged since 2005 in the operation of one or more restaurants and catering businesses.

3The applicant has provided certain documents including tax returns and Canada Revenue Agency Assessments for a number of years both before and after his termination. The applicant also states that he has provided all of the documents that he has related to his job search efforts.

4The production dispute relates to documents related to business activities of the applicant:

[All records regarding the applicant's] income from the business or businesses in which he was engaged or continued to engage after the termination of his employment on September 30, 2005, including for the year 2005 and each year thereafter, the financial statements and books of account for those businesses, tax remittances (provincial and federal) for those businesses and each of his partners in such business, including, without limitation, those family members identified in a Business Names Report of the applicant's business, "The Nilgiris" (viz. Balasubramanian, Juianthi; Balasubramaniam, Hari; and Balasubramaniam, Niveditha).

5The applicant resists this Request. The applicant states that he is seeking, in addition to general damages and interest, damages for lost employment income (emphasis added by applicant). The applicant states that he earned business and rental income both before and after the termination of his employment. Accordingly, the records related to his business and rental income are not relevant to the determination of his entitlement to damages for loss of employment income. The applicant also states that, as the businesses with which the applicant is associated are not parties to this proceeding, the respondents are not entitled to records of these businesses or the applicant's business partners. The applicant also states that paragraphs 43 and 45 of the respondents' Response are scandalous and are included solely for the purpose of founding this Request, described by the applicant as a fishing expedition.

6I am satisfied that the documents sought by the respondents are arguably relevant to an issue in dispute in this Application. I agree with the respondents that the mere fact that the applicant earned business income both before and after his termination does not mean this information is not arguably relevant to the calculation of his damages and the issue of mitigation. In this respect it seems to me no different than an individual working two part-time jobs prior to termination from one of them, seeking to mitigate their damages by increasing their hours of work in their other employment. These circumstances may be somewhat more complex than my simple example, but in principle I can see no difference.

7As regards the applicant's position that because some of these businesses and/or his business partners are not parties to the Application the respondents are not entitled to those records, again I agree with the respondents. These materials are arguably relevant and should be disclosed. It may be that there are issues with respect to whether or not the applicant has control, possession or access to some of the material sought. Those issues will be dealt with as they arise.

8Finally I do not agree that paragraphs 43 and 45 of the Response are scandalous and should be struck. While these paragraphs do provide the factual foundation for this Request, they can hardly be seen as providing a pretext for a fishing expedition.

ORDER

9For all of the above reasons, I order that the applicant produce to the respondents within 30 days of the date of this Interim Decision the following materials:

[All records regarding the applicant's] income from the business or businesses in which he was engaged or continued to engage after the termination of his employment on September 30, 2005, including for the year 2005 and each year thereafter, the financial statements and books of account for those businesses, tax remittances (provincial and federal) for those businesses and each of his partners in such business, including, without limitation, those family members identified in a Business Names Report of the applicant's business, "The Nilgiris" (viz. Balasubramanian, Juianthi; Balasubramaniam, Hari; and Balasubramaniam, Niveditha).

10I am not seized.