HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mirco Buth
Applicant
-and-
City of Ottawa
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Buth v. Ottawa (City)
WRITTEN SUBMISSIONS
Mirco Buth, Applicant
Self-represented
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of family status and disability. The respondent has filed a Response denying the allegations in the Application. This matter is scheduled for hearing in Ottawa on July 6, 2012.
Background
2On June 21, 2012, the Tribunal issued a Case Assessment Direction (the “CAD”) which states at paras. 2-5:
On June 21, 2012, the Tribunal received a Form 7 filed by the applicant “requesting assistance from the Commission to intervene in this case”. Form 7, is a Form that is filed by the Human Rights Commission when it seeks permission from the Tribunal to intervene in an application. Only the Commission can file a Form 7. The Tribunal does not have the authority, in this case to compel the Commission to Intervene.
Having reviewed the substance of the Form 7, it appears that the applicant is seeking production of documents from the respondent as detailed at page 7, section 12 of this form.
Pursuant to section 5 of the Rules the Tribunal has the power to relieve a party from strict compliance with its Rules. I find that the applicant should have filed a Form 10, Request for an Order during Proceedings instead of the Form 7. I find that this is a technical breach of the Rules.
Given that the hearing is scheduled shortly, I find that it is appropriate to abridge the time for the applicant to respond to this Request for production.
3In the CAD the Tribunal directed the respondent to file a Form 11, Response to the Request for production by June 28, 2012. The respondent did not file a Response to the Request for production.
The Request for Production
4The applicant seeks the respondent to produce the following documents:
a. An ergonomist assessment that was undertaken, including all related notes;
b. Performance evaluations from 2004 to 2009 (inclusive); and
c. All emails sent by the applicant to and from his City of Ottawa account to/from City staff, resources, contractors related to the medical/workplace concerns he had raised.
5The 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.
6Having reviewed the pleadings and the nature of the documents sought by the applicant, I find that these are arguably relevant and should be disclosed to the applicant. I have some concerns with respect to the fact that the applicant has not specified the time period for the disclosure of the emails that he seeks at paragraph 4c. Further, the applicant has not identified specific emails that he is seeking. However, the respondent has an obligation to make reasonable searches to locate any arguably relevant documents.
Order
7The Tribunal Orders the following:
a. The respondent must produce to the applicant the following by Wednesday July 4, 2012:
i. The ergonomist assessment that was undertaken, including all related notes; and
ii. Performance evaluations from 2004 to 2009 (inclusive).
b. The respondent must make its best efforts and undertake reasonable searches to locate any emails sent by the applicant to and from his City of Ottawa account to/from City staff, resources, contractors related to the medical/workplace concerns he raised from January 1, 2008, until the date of his termination from employment on September 16, 2009. The respondent should, to the extent possible, provide copies of these emails to the applicant in advance of the hearing and if it is impossible to do so, it must bring two copies of these emails to the first day of hearing.
Dated at Toronto, this 29th day of June, 2012.
“Signed by”
Geneviève Debané
Vice-chair