Garcia v. Commissionaires Great Lakes, 2011 HRTO 2306

Human Rights Tribunal of Ontario

B E T W E E N:

Joe Garcia

Applicant

-and-

Commissionaires Great Lakes and Philip Day

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: December 23, 2011

Citation: 2011 HRTO 2306

Indexed as: Garcia v. Commissionaires Great Lakes

1The hearing in respect of the Application is scheduled for January 16, 17, and 18, 2012.

2This Interim Decision addresses the applicant’s November 25, 2011 Request for an Order during Proceedings, seeking production of certain documents by the respondent, and the applicant’s request for an adjournment of the January 2012 hearing dates.

PRODUCTION OF DOCUMENTS

3In his Request for an Order during Proceedings filed with the Tribunal on November 25, 2011, the applicant seeks production of the following things:

a) Any written documents (other than the organizational respondent’s Policy and Procedures Handbook from January 2008) regarding the respondents’ requirement for English language proficiency, including the specific standard or score employees had to meet, in respect of the time period 2008-2009;

b) A copy of the applicant’s personnel file; and

c) Documentation relating to other employees of the organizational respondent as follows:

i. Copies of complaints made by clients, the public or other staff about the English language proficiency and/or “poor oral or written communication” of employees of the organizational respondent during the years 2001 to 2009, as well as any documentation relating to such complaints;

ii. A list of the organizational respondent’s employees who were the subject of any such complaints, together with an indication as to whether investigations into such complaints were undertaken, whether testing/assessments were done as a result of such complaints; whether the employees in question were disciplined and if so the nature of the discipline imposed;

iii. A colour photograph of each of the above-noted employees;

iv. Documentation regarding how the organizational respondent dealt with the above-described complaints, including whether the complaints were investigated, whether the employee in question was required to undergo testing or assessment, whether the employee was disciplined and if so the nature of discipline imposed.

v. Test scores for all employees who were required to take English language proficiency tests between 2001 to 2009 as a result of a complaint, performance concerns or as a condition of employment.

Items requested in paras.3 (a) and (b) above

4The test for production of documents in a Tribunal proceeding is arguable relevance. In their November 28, 2011 letter responding to the applicant’s production request (provided to the Tribunal by the applicant in December 2011), the respondents do not appear to contest the arguable relevance of the documents identified in paras. 3(a) and (b) above. In any event, I find these documents to be arguably relevant to the issues to be determined. Such materials ought therefore to be produced by the respondents to the applicant, pursuant to Rule 16 of the Tribunal’s Rules of Procedure, within 10 days of the date of this Interim Decision. The respondents are directed to provide these materials to the applicant via fax and/or email.

5In its November 28, 2011 response to the applicant’s production request, the organizational respondent took the position that the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5) (“PIPEDA”) required it to obtain the applicant’s written permission before producing a copy of his personnel file (para. 3(b)) to him and/or his legal counsel. Leaving aside the issue whether a written request for the personnel file from the applicant’s legal counsel is sufficient written permission from the applicant to disclose the file, I find that in the circumstances of this case PIPEDA does not require the organizational respondent to obtain written permission from the applicant before disclosing the personnel file to the applicant or his counsel.

6Discovery of documents in litigation is exempt from the consent requirements of PIPEDA, which generally require individual consent for the disclosure of personal information, where the disclosure is made to comply with an order of a court or a body with the jurisdiction to compel production of documents or is required by law (PIPEDA s.7(3)(c) and (i)).

7Subsection 7(3) of PIPEDA states:

“an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is …

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records; or

(i) required by law.

8The Tribunal has the authority pursuant to s.5.4 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, s.43(3)(f) of the Code and Rule 1.7(p) of the Rules of Procedure to compel production of documents that are arguably relevant to the issues in the Application. As such, the Tribunal has the jurisdiction to compel the production of personal information within the meaning of s.7(3)(c) of PIPEDA. In addition, in light of my finding that the applicant’s personnel file is arguably relevant to the issues in the Application, and therefore ought to be produced, the disclosure of such records is required by law (s.7(3)(i) of PIPEDA). Accordingly, by virtue of s.7(3) of PIPEDA, the organizational respondent may disclose the applicant’s personnel file, including all personal information contained therein, to the applicant and/or his counsel without obtaining a specific written consent from him in this regard.

Items requested in para 3(c) above

9As for the applicant’s request for documents and information relating to other employees of the organizational respondent, identified in para. 3(c) above, I will deal with this at the hearing in January. The respondents appear to resist this aspect of the applicant’s production request on the basis that PIPEDA prevents them from disclosing employees’ personal information. If such documents are arguably relevant to the issues in the Application, then for the reasons referred to above, and despite the respondents’ suggestion to the contrary, I doubt that PIPEDA prevents their disclosure. That said, I am not prepared to order the organizational respondent to produce the requested documents and information at this time because it is not clear to me, at this time, that the documents and information sought are arguably relevant to the issues in the Application.

10Both parties should be prepared at the hearing to make submissions about this aspect of the applicant’s production request. Among other things, the organizational respondent should consider what information in its possession, power or control is captured by the applicant’s request. The applicant should come prepared to explain why the documents sought are arguably relevant to the issues in the Application and to address whether the production request amounts to a fishing expedition.

REQUEST FOR AN ADJOURNMENT

11On December 21, 2011, the applicant requested an adjournment of the January 2012 hearing dates in this matter. The stated basis for the adjournment request is that there is not enough time for the applicant to review the documents it seeks to have the respondents produce in advance of the hearing in January.

12Having reviewed his December 21, 2011 adjournment request, it seems that the documents the applicants feels that he would not have sufficient time to review before the January 2012 hearing are those described in para 3(c) above. It appears that these documents may relate to more than a hundred employees and span many years, and if ordered produced, the applicant may well require a considerable amount of time to review them. However, as I have not yet ordered that these documents be produced, this is not a basis upon which to adjourn the hearing. Moreover, even if I had ordered the documents in question produced, in my view, this would not be a sufficient reason to adjourn the January hearing dates since the applicant could still testify on his own behalf and present his other evidence on those dates: Damassia-Correa v. Coin Co. International PLC, 2011 HRTO 2191.

13Nor am I persuaded that an adjournment is warranted to allow the applicant to review the materials which I have ordered produced (paras. 3(a) and(b)). Since at least November 28, 2011, the applicant could have obtained a copy of his personnel file by providing the respondent with his written consent to disclose it to his legal counsel (notwithstanding that I have found that such consent is not required). In any event, the applicant will have almost two weeks before the hearing to review the personnel file and any documents which the organizational respondent produces relating to its standard for English language proficiency (para. 3(a)). This ought to be more than sufficient.

14The applicant’s request for an adjournment is denied and the hearing will proceed as scheduled on January 16, 17, and 18, 2012.