HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kouros Gorgani

Applicant

-and-

Sybase Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 25, 2010

Citation: 2011 HRTO 415

Indexed as: Gorgani v. Sybase Canada

Written submissions

Kouros Gorgani, Applicant John R. Evans, Counsel

Sybase Canada Limited, Respondent Richard Charney, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination on the basis of disability in employment. He also alleges reprisal or threat of reprisal.

2In essence, the applicant alleges that his disability was a factor in the respondent’s decision to terminate his employment. He alleges that the respondent discriminated against him by requiring him to return to work while he was on a medical leave of absence. When the applicant failed to return to work on March 9, 2009, his employment was terminated. The applicant argues that this was in violation of his rights under the Code and that it constitutes a reprisal.

3The respondent denies the allegations of discrimination. It states that the applicant provided no medical documentation that would have supported an ongoing medical leave beyond March 9, 2009. The respondent further alleges that the applicant was actively employed elsewhere and seeking other employment while he was receiving short-term disability (“STD”) benefits from the respondent.

4The applicant states that he was never asked for additional medical documentation justifying his absence from the workplace beyond March 9, 2009. He denies that he sought employment or was actively employed while he was in receipt of STD benefits. He states that, although he was listed with a brokerage for the purposes of maintaining his real estate licence, he was not actively working as a real estate agent while in receipt of STD benefits.

5The matter has been scheduled for hearing on April 12, 13, and 14, 2011.

6The parties have filed the following Requests for Orders During Proceedings (“Requests”):

a. on January 5, 2011, the respondent filed a Request seeking to compel third parties to disclose documents the respondent says are arguably relevant to this proceeding. The applicant has not filed a Response to the Request and the time for doing so under the Tribunal’s Rules of Procedure has elapsed.

b. on January 17, 2011, the applicant filed a Request seeking particulars regarding documents over which privilege has been claimed. The respondent objects to the Request.

[7[ This Interim Decision deals with these two Requests.

REQUEST FOR PRODUCTION OF DOCUMENTS FROM THIRD PARTIES

8The respondent seeks production of documents in the possession of Re/Max Executive Realty Ltd. Brokerage/Re/Max Executive Realty, Century 21 Heritage Group Ltd., and HomeLife Real Estate Solutions Ltd. Brokerage that relate in any way to the employment, agency, and/or contractual relationship between the applicant and those entities between September 1, 2008 and December 31, 2010, including but not limited to all of the applicant’s real estate listings and all income earned by the applicant.

9In support of its Request, the respondent has filed documents that suggest the applicant has had a number of real estate listings and has earned income from real estate dealings. Although the applicant has denied being actively employed while he was in receipt of STD, the documents filed by the respondent suggest that the applicant may have earned income during that period or in the period immediately following his dismissal.

10Rule 1.7 of the Tribunal’s Rules of Procedure states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any date storage, processing or retrieval device system, to produce the information in any form.

11As the Tribunal explained in Lampi v. Princess House Products Canada, (2008) HRTO 1:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” - - not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and the issues in dispute before the Tribunal.

12I am satisfied that the documents requested by the respondent meet the test of arguable relevance in the circumstances. They are arguably relevant to issues raised in the Application, including whether the applicant was disabled at the material times and whether he mitigated any damages he might have sustained.

13My finding that the documents are arguably relevant does not necessarily mean that the documents will be admissible at the hearing.

PRIVILEGE

14The respondent has claimed solicitor-and-client privilege over a number of documents. With the exception described below, the respondent has not disclosed the documents over which privilege is claimed.

15The respondent has claimed privilege over part of a document that has been disclosed to the applicant. While the respondent disclosed the document, it redacted portions of it to remove information it says relates to advice provided by the respondent’s solicitor.

16The applicant seeks an order requiring the respondent to describe the documents over which privilege is claimed with sufficient particularity so that any claim of privilege can be reviewed and evaluated. It asks that the description include the basis upon which privilege is claimed, the identity of the person sending and receiving the document as well as the nature of the communication and the date of the correspondence. The applicant’s Request relates to both the redacted document and the documents over which privilege has been claimed and that have not be disclosed.

17The applicant argues that such a requirement flows from Rule 16 of the Tribunal’s Rules of Procedure (“Rules”). He argues that this Rule analogizes to the Rules of Civil Procedure (“Civil Rules”) and relies on jurisprudence under Rule 30.03 of the Civil Rules. In this regard, the applicant does not refer to any specific case and seems to rely instead on annotations to the Civil Rules, which have been included with the Request. He argues that the requirement to provide particulars regarding documents over which privilege is claimed under Civil Rule 30.03 (and by analogy under Rules 16 of the Tribunal’s Rules) includes the a requirement to provide a description of the function, role and status of the receiver and sender, the grounds for the claim of privilege and a description of each document.

18The applicant also relies on an arbitration decision in Toronto District School Board and C.U.P.E., Loc 4400 (2002) L.A.C. (4th) 20, where arbitrator Shime concluded that the rules of production are designed to ensure a fair process and, as such, ought to be interpreted expansively. While arbitrator Shime sets out the well-established rule that the party claiming privilege has the burden of establishing the privilege, his decision does not speak to the particulars that must be provided regarding documents over which solicitor-client privilege is claimed.

19The respondent states that a list specifying the particulars of each document over which privilege is claimed is unnecessary and disproportionate in the circumstances. It states that the only privilege claimed is solicitor-client privilege and that the documents in issue are communications between the respondent and its legal counsel, including letters and emails. In regards to the redacted document, the respondent states that it has provided particulars regarding the basis for the privilege claimed.

20The respondent argues that the Tribunal’s Rules do not require the respondent to produce a list of documents over which privilege is claimed and that, to require it to do so would:

a. be an inefficient use of resources;

b. not be in keeping with the proportionality standards of balancing the cost and burden of producing the information with the nature of the litigation; and

c. risk offending solicitor-and-client privilege in that the very fact that the respondent has communicated with legal counsel is protected by the privilege.

21Rule 16 of the Tribunal’s Rules deals with disclosure. It states:

Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

22The respondent argues that the requirement to provide a list of all documents for which privilege is claimed is not a rule that is “strictly adhered to in the literal and technical meaning proposed by the Applicant”.

23While I appreciate the respondent’s concerns regarding proportionality and efficient use of resources, I cannot accept its interpretation of Rule 16.

24The 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”.

25There is no dispute that documents that fall within the solicitor-client privilege are the exception to this and need not be disclosed. While the privilege that exists between a party and its lawyers is closely protected, a claim of solicitor-client privilege may be challenged and can be subject to scrutiny. When an opposing party disputes a claim of solicitor-client privilege, the party seeking to rely on the privilege has the burden of establishing that it applies. Once the privilege is established, the documents enjoy broad protection from disclosure: Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, 238 D.L.R. (4th) 1.

26I am mindful that any requirement to disclose information in support of the claim of solicitor-client privilege must not, in itself, constitute a disclosure of privileged information. In other words, the party seeking to rely on the privilege must not, in defending the privilege, be required to give particulars that would destroy the benefit of the privilege.

27Conversely, the opposing party is not required to accept the privilege claim on its face. It must have access to sufficient information about the documents for which privilege is claimed to evaluate the claim and determine whether to challenge it in the circumstances.

28In light of these principles and the language of Rule 16, it is not sufficient for the respondent to simply identify an unknown number of written communications between the respondent and its solicitors that fall within the privilege claimed. The information provided by the respondent in the circumstances, does not allow the applicant to assess whether the privilege is properly claimed.

29Rule 16 requires the parties to describe the nature of the documents and the reason any privilege is claimed. In this case, the respondent has stated that the privileged claimed is solicitor-client privilege. With the exception of the redacted document, however, the respondent has not provided sufficient particulars regarding the nature of the documents over which it makes this claim.

30To meet the requirements of Rule 16 in the circumstances, the parties are required to identify the number of documents over which they claim solicitor-client privilege, the nature of the relationship between the sender and the receiver of each of those documents (for example, external counsel to internal counsel), and whether each document is dated before or after the filing of the Application.

31The respondent has asked that, in the event the applicant’s Request for particulars is granted, the applicant be required to provide similar information regarding the documents over which he claims privilege.

32Both parties are required to comply with the disclosure obligations under Rule 16. Accordingly, within two weeks of the date of this Interim Decision, the parties will exchange the following information:

-the number of documents over which privilege is claimed;

-the nature of the privilege or privileges claimed and the number of documents that fall within the categories of privilege claimed;

-the nature of the relationship between the sender and receiver of the documents;

-the number of documents over which privilege is claimed that pre-date the filing of the Application;

-the number of documents over which privilege is claimed that post-date the filing of the Application.

33The parties need not necessarily provide a list of each document. It may be appropriate to bundle this information based on, for example, the nature of the sender or recipient, when the document was created, or the type of privilege claimed.

34I am not seized.