HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Arnob Bose
Applicant
-and-
Ontario Realty Corporation, David Glass, H.R. Goss, Jennifer Lau, Jim Curran, Judy Satram and Kathy Bull
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Bose v. Ontario Reality Corporation
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 12, 2010. In the Application, the applicant alleges discrimination and harassment with respect to employment based on colour, ancestry, ethnic origin, sex, family status and age. The respondents have filed a Response denying the allegations in the Application and the applicant has filed a Reply. This matter is scheduled for hearing in Toronto on February 1, 2 and 3, 2012.
2In the Application and the Reply, the applicant makes a number of allegations against the respondents. The ones that are the most relevant to the issues raised in the Requests (discussed below) include allegations that his wife suffered two miscarriages in July and October 2009, and that the Corporate respondent did not accommodate his requests for time off to be with his wife. The applicant has also alleged in the Application that he was the victim of harassment and discrimination which directly resulted in him seeking alternate employment, and that the respondents’ actions left him unable to negotiate his salary with his subsequent employer.
3The purpose of this Interim Decision is to address the respondents’ Request for an Order during Proceedings (“the respondents’ Request”), which was filed on December 9, 2011, requesting that the Tribunal order further production of documents by the applicant and that the applicant be compelled to provide third-party contact information. The applicant has filed a Form 11 outlining his position on the issues raised in the respondents’ Request. The applicant also delivered and filed a Request for an Order During proceedings on December 19, 2011 seeking particulars (the “applicant’s Request”). Since the time for the respondents to respond to the applicant’s Request has not yet passed this Interim Decision does not address the applicant’s Request.
4The respondents request production of documents which can be broadly summarized as follows:
All documents related to the applicant’s job search, including negotiations with his subsequent employer;
Alternatively, if the applicant is not in possession of the above-noted documents, that the applicant be compelled to provide the subsequent employer’s contact information so that the respondents can obtain these documents, directly from them;
All medical records for both the applicant and his wife for 2008 and 2009, including decoded OHIP summaries and any other related documentation;
Alternatively, if the applicant is not in possession of the documents with respect to his wife, that the applicant be compelled to provide his wife’s contact information so that the respondent’s can obtain these documents directly from her; and
Tax information to confirm the income earned by the applicant.
5In his response to the respondents’ Request the applicant gives a number of reasons why he will not disclose to the respondents the requested information, including that he intends to present much of the mitigation information and evidence about the negotiations with his subsequent employer through two witnesses, so documents are not necessary; and he is prevented due to confidentiality obligations from disclosing any documents with respect to his subsequent employment.
6With respect to his and his wife’s medical information, the applicant takes the position that he has not sought medical treatment from his family physician for over two years and that his wife will testify about her own health issues at the hearing. The applicant states that he has provided some information confirming that the applicant’s wife was indeed hospitalized at some point of time in 2008.
7With respect to information about the income that he earned and the disclosure of his T-4s and tax returns, he seems to take the position that these are not necessary because he is only seeking $5,000 dollars as loss of wages which is the difference in income earned for a period of one year.
8In his response to the Request, the applicant also states that he has reason to believe that the respondents have threatened his life and that the “respondents were using medical information about employees specifically to find their weaknesses in order to injure or kill them”. The applicant is concerned that the same thing would happen to him and his wife if the respondents obtain such information. He states that he is also concerned that the respondents will use the information about his taxes to “hurt him and his family”.
9On December 19, 2011, the applicant filed with the Tribunal the documents that he intends to rely on at the hearing, which include two exhibits, a book of photographs that were apparently taken by the applicant, and an English translation of Adolf Hitler’s book “Mein Kampf”. The Tribunal will request the respondents’ comments on whether the Tribunal should make any directions or orders in light of these statements and actions.
DECISION
10The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. 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: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9.
Disclosure of Information
Mitigation Information
11With respect to the requested information at paragraph 4.1 and 4.2 above, the Tribunal does not accept the applicant’s submission that because he intends to call evidence through witnesses about certain issues that this relieves him of his obligation to provide arguably relevant documents. The applicant has not disputed that the documents requested by the respondents are arguably relevant. The applicant has made issue of his alleged inability to negotiate his salary with his subsequent employer, because of the alleged continued harassment of the applicant. As such, these negotiations and all documents with respect to his subsequent employment are relevant to the issues in the pleadings. I note that the applicant has not provided any evidence to suggest that his employment negotiations and related documents are subject to privilege and I can think of none that would apply in these circumstances.
12Further, I find that the respondents are entitled to know the identity of the applicant’s subsequent employer in advance of the hearing so that it knows the case that it has to meet. I note that in its Response the respondents had stated that based on e-mails that were sent by the applicant on his work computer that he was working for Romspen Mortgage Investment Fund (“Rompsen”). In his Reply, the applicant unequivocally states that he is not working for Rompsen or any other related company and that he was refusing to provide this information to the respondents. In its Request counsel notes that the original contact information identified in the Application was Romspen’s corporate address. The Tribunal has reviewed the applicant’s intended witnesses, two of whom intend to testify that the applicant does not in fact work for Romspen. It appears that the issue of the identity of the applicant’s subsequent employment is in dispute between the parties. The Tribunal has the power to make orders to ensure a fair, just and expeditious process. I have reviewed the applicant’s summary of his intended evidence which does not identify his subsequent employer. This is a fact that can be easily verified by the applicant. I find that it is appropriate to direct the applicant to provide this information in advance of the hearing so that the respondents know the case they must meet and to avoid any unnecessary delay.
Medical Documentation
13The scope of the issues in this case does not warrant an order for production of the applicant’s medical records, at least at this stage. This is not a case in which the applicant’s health has been put in issue. Further, the applicant is not relying on any medical information to support his claim for damages including that he suffered stress and anxiety. For all of these reasons the respondents’ Request with respect to the applicant’s medical records is denied. The Tribunal notes, however, that the onus is on the applicant to prove any damages that he is seeking and the Tribunal may draw appropriate inferences from the applicant’s failure to provide such medical information to the extent that such information is relevant to the applicant’s claim for damages.
14However, the applicant has raised in his Application as one of the bases for his allegation of discrimination under the Code is that his wife suffered two miscarriages, including one in July 2008, and that the respondents did not accommodate his requests to be with her during this time. The applicant has also indicated that he intends to call his wife at the hearing to testify about these medical issues including the miscarriage which occurred in October 2008 and has disclosed at least one medical record to the respondents. As such, it appears that at least some of the medical records sought by the respondents are arguably relevant to the issues in dispute including medical records which support that the applicant’s wife suffered miscarriages in July and October 2008.
15The Tribunal has the power to direct production of third party records but given that the respondents do not have the applicant’s wife’s contact information, they have been unable to serve on her a Request that she produce such records. In light of the short time remaining before the hearing, I find it appropriate, rather than direct production of her contact information, to leave any directions on this issue to the hearing, if necessary. If it is apparent from the applicant’s evidence or his wife’s evidence at the hearing that some of her medical records are relevant to the issues in the Application, and their production is necessary for the fair, just and expeditious determination of this Application, I will consider a request from the respondents at the hearing for an order directing her to obtain them.
16Finally, in this regard, I note that the respondents’ request, as it is currently framed, seeks production of all medical records for the applicant’s wife for 2008 and 2009, including decoded OHIP summaries and any other related documentation. This request does not appear to be limited to medical records associated with the applicant’s wife’s miscarriages, but appears to cover all medical visits for any reason. Should the need arise during the hearing to consider the respondents’ production request regarding the applicant’s wife’s medical records, the parties’ submissions regarding the requested documents’ relevancy will likely also need to address the scope of the production request.
ORDER
17The Tribunal Orders that the applicant deliver to the respondents and file with the Tribunal by no later than January 6, 2012 the following documents and information, which are in the control and/or possession of the applicant:
The identity and contact information of his immediate subsequent employer;
All correspondence between the applicant, recruitment firms or headhunters and/or other employers from August 2008 until March 31, 2009, including any offers and/or counter-offers, and/or employment agreements, including cover letters appendices and/or addendums if any;
All T-4 documents and tax returns for 2008 and 2009, for all sources of income earned by the applicant up to and including December 31, 2009.
18Since the applicant has provided contact information in his Application which does not appear to be his residential address, the applicant may redact his home address and telephone number from any of these documents.
19The Tribunal directs the parties’ attention to Rule 3.3 which states that “parties and representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.”
20On or before January 6, 2012 respondents may provide submissions on the matters described in paragraphs 8 and 9 above and whether the Tribunal should make any directions or orders as a result of the applicant’s statements or actions.
21On December 19, 2011, the applicant filed his Request which the Tribunal will deal with once it has had the opportunity to review the respondents’ response to the request and any other submissions that the respondents wish to make with respect to the documents and/or submissions that have been filed with the Tribunal. The respondents time to respond to the applicant’s Request is extended to January 6, 2012.
Dated at Toronto, this 22nd day of December, 2011.
“Signed by”
Geneviève Debané
Vice-chair