Jones v. No Frills Malloch’s 3928, 2011 HRTO 955

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom Jones Applicant

-and-

No Frills Malloch’s 3928 a.k.a. “2168750 Ontario Limited o/a Malloch’s No Frills and Corporate No Frills”, Tony Cassullo and Glenn Malloch Respondents

-and-

United Food and Commercial Workers, Canada, Local 1000A Intervenor

Interim Decision

Adjudicator: Ena Chadha Date: May 18, 2011 Citation: 2011 HRTO 955 Indexed as: Jones v. No Frills Malloch’s 3928

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 29, 2010, alleging discrimination with respect to employment on the basis of disability.

2By way of Interim Decision 2010 HRTO 2423, the Application was deferred pending the completion of the applicant’s Duty of Fair Representation application to the Ontario Labour Relations Board (“OLRB”). That Interim Decision noted the following two preliminary matters were outstanding: 1.) the respondents’ request to dismiss on the basis that the applicant signed a full and final release and 2.) a request to intervene by the applicant’s union, the United Food and Commercial Workers, Canada, Local 1000A (the “Union”).

3On April 29, 2011, the applicant filed a Request for Order During Proceedings asking that his Application be reactivated and that the corporate respondent be ordered to produce a video.

4On May 16, 2011, the respondents wrote to the Tribunal highlighting that the preliminary issues identified in the previous Interim Decision remained outstanding and requested that the Tribunal deal with their request to dismiss on a preliminary basis.

REACTIVATE

5The applicant provided a copy of the OLRB Decision, dated March 4, 2011, confirming that the applicant’s OLRB application was withdrawn. The respondents do not dispute the applicant’s request to reactivate the Application. As such, there no longer appears to be any reason to defer consideration of the Application. Accordingly, the Application is reactivated.

PRODUCTION

6Pursuant to Rule 16 of the Tribunal’s Rules of Procedure (“Rules”), all arguably relevant documents in the possession of a party must be disclosed to other parties no later than 21 days after the Tribunal sends a Confirmation of Hearing and copies of documents intended to be relied upon in the hearing are required to be exchanged no later than 45 days prior to the first scheduled hearing day. Pursuant to Rule 17 of the Tribunal’s Rules, parties must exchange witness lists and a summary of expected evidence no later than 45 days prior to the first scheduled hearing day. The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the Application. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: see McKay v. Toronto Police Services Board, 2009 HRTO 1220.

7The applicant indicates that he is not seeking a “document” and therefore is entitled to production of the video in advance of the timelines established by the Tribunal’s Rules for exchange of arguably relevant documents.

8The Tribunal’s Rules 16 and 17 establish a structure for pre-hearing disclosure of arguably relevant documents, exchange of documents intended to be relied upon at the hearing and a summary of expected witness evidence. It is apparent from this system of pre-hearing disclosure and production that the Rules are intended to facilitate advance notice and exchange of arguably relevant information and materials, including actual documents and other anticipated physical and witness evidence.

9The applicant’s request for production of the video surveillance is denied. As no Confirmation of Hearing has been issued in this case, the applicant’s request for disclosure is premature. There are no special circumstances that justify a disclosure order at this stage of the process.

REQUEST TO INTERVENE

10As stated in Bettencourt v. Peel District School Board, 2010 HRTO 1644, a union almost always has an interest in a human rights application involving a member, and unless there are exceptional circumstances, the Tribunal will grant the bargaining agent intervener status when requested. In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit, the Union’s request to intervene is granted. The style of cause is amended accordingly.

RELEASE

11As noted in the previous Interim Decision, the Tribunal’s general practice is to hold a preliminary hearing to determine whether to dismiss an Application in instances where an applicant has signed a release on the basis that to allow such an Application to proceed would be an abuse of process.

12Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an Application without affording the parties an opportunity to make oral submissions. Accordingly, the Registrar will schedule a 1.5-hour conference call hearing to consider whether the Application should be dismissed as a result of the release signed by the applicant dated September 30, 2009.

13If any party or intervenor wishes to rely on any additional materials (including written submissions, documents, information or case law) or facts not already before the Tribunal, they must deliver such additional material to the other party/intervenor and file it with the Registrar no later than 21 days prior to the teleconference call hearing. Following the conference call hearing, the Tribunal will determine whether there is a basis to proceed with the Application, and may make further directions.

Orders and Direction

14In summary, the Tribunal orders and directs as follows:

1. the application is re-activated;
2. the request for production of the video surveillance is denied;
3. the Union’s request to intervene is granted; and
4. the Registrar will schedule a 1.5-hour conference call hearing to consider whether the Application should be dismissed as a result of the release signed by the applicant dated September 30, 2009, with any additional materials to be delivered and filed according to the schedule set out above.

15I am not seized of this matter.