HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tarek Ibrahim
Applicant
-and-
Hilton Toronto
Respondents
Interim decision
Adjudicator: Alison Renton
Date: December 28, 2011
Citation: 2011 HRTO 2312
Indexed As: Ibrahim v. Hilton Toronto
[1] This file is scheduled for hearing on January 20, 2012, pursuant to a Notice of Confirmation of Hearing dated July 19, 2011 (“the hearing notice”).
[2] In an Interim Decision dated November 22, 2011 (“the November Interim Decision”), 2011 HRTO 2109, at issue was whether or not the applicant is required to produce documents that he identified to the respondent as part of his arguably relevant documents disclosure. The applicant advised the respondent that he claimed privilege over each of the three documents he identified, but failed to provide any reason for the privilege (“the privileged documents”).
[3] Tribunal ordered that:
within three days of the date of this Interim Decision, the applicant shall deliver to the respondent a description of the privilege(s) that he asserts over the items describes in his list of arguably relevant documents over which he is claiming a privilege;
if the respondent challenges the ground(s) of privilege, within three days of the date it receives the applicant’s material, it is directed to deliver to the applicant and file with the Tribunal the applicant’s privileged description and the reasons why the privilege claim is being challenged.
[4] By letter dated November 29, 2011, the respondent wrote to the Tribunal advising that by email dated November 26, 2011, the applicant had communicated with the respondent stating:
As per the Tribunal order, the following is a description of the privileges [sic] over the documents in question;
1- sound recording, it contains information proving the discriminatory and vindictive act of Ms. Miller against me.
Reason for privilege, if I submit the recording now it will reveal the name of the witness I’m planning to bring to the hearing, which I’m not required to reveal the name of the witness at this time.
2-witness statement, I will not be relying on it, since the witness decided to come in person to the hearing.
3-personal notes; it describes the incidents[’] date, what happened, with whom, and how I felt at that time from a personal prospective, and since it’s part of my very personal Journal, it won’t be appropriate to publish it, and for this reason I claim privilege over it.
[5] By letter dated November 29, 2011, the respondent wrote to the Tribunal submitting that the applicant has failed to demonstrate that his documents are privileged and requesting that the Tribunal order production of them. The respondent submits that it is prejudiced in its ability to meet its case and requests that the Tribunal dismiss the Application.
[6] Subsequently, the respondent delivered to the applicant and filed with the Tribunal its disclosure requirements pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure. The applicant has delivered to the respondent and filed with the Tribunal his witness statements. To date, he has not provided copies of any documents, including the privileged documents. He does identify in the witness statement of Ajay Ramakrakirshna that a voice recording will confirm his anticipated evidence.
[7] By letter dated December 21, 2011, the respondent confirmed that it had still not received the voice recordings and requested production of them.
Analysis
[8] For the reasons set out below, the applicant is ordered to produce the documents identified in number 1 and 3 in his email to respondent counsel dated November 26, 2011. Specifically, that is the sound recording and his personal notes.
[9] In Gorgani v. Sybase Canada, 2011 HRTO 415, at para. 24, the Tribunal stated:
The purpose of Rule 16 and of disclosure requirements, generally, is to ensure a fair process. Arguably relevant documents must be available to the parties in advance of the hearing. This has the effect of facilitating settlement discussions and allowing the parties to adequately prepare for the hearing. It means that parties will not be surprised by information presented at the hearing and it does away with any “trial by ambush”.
[10] With respect to the sound recording, I do not find that it is privileged. Concern about identifying the name of a witness does not amount to privilege. Further, I note that the applicant has identified the name of the witness associated with the sound recording and accordingly the Tribunal directs the applicant to immediately deliver to the respondent and file with the Tribunal a copy of the sound recording.
[11] I also order that the applicant to immediately deliver to the respondent and file with the Tribunal a copy of pages from his personal notes pertaining to the alleged incidents, dates they occurred, with whom and descriptions of how the applicant felt at the time. To the extent that the “very personal journal” contains notes pertaining to something other than descriptions of the alleged incidents, the applicant can redact that information from the notes that are ordered to be disclosed.
[12] If the applicant fails to comply with the Tribunal’s orders, the Tribunal may dismiss the Application. The applicant’s attention is drawn to Rules 1.7(v.1) and 5.6 of the Tribunal’s Rules of Procedure which sets out the consequences for a party’s failure to comply with the Tribunal’s directions. The applicant’s attention is also drawn to Rocca v. Peel District School Board, 2009 HRTO 2117, in which an Application was dismissed because the applicant failed to comply with the Tribunal’s production order. The Tribunal’s case law is found at www.canlii.org.
Order
[13] Accordingly, the Tribunal orders that the applicant immediately deliver to the respondent and file with the Tribunal:
a) a copy of the sound recording referenced in para. 1 of the applicant’s email to respondent counsel dated November 26, 2011; and
b) a copy of pages from the applicant’s personal notes pertaining to the alleged incidents, dates they occurred, with whom and descriptions of how the applicant felt at the time.
Dated at Toronto, this 28^th^ day of December, 2011.
“Signed by”
Alison Renton
Vice-chair