HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farrukh Effendi

Applicant

-and-

Securitas Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Kevin Cleghorn

Date: August 15, 2012

Citation: 2012 HRTO 1579

Indexed as: Effendi v. Securitas Canada Ltd.

WRITTEN SUBMISSIONS

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Farrukh Effendi, Applicant ) M. Kate Stephenson, Counsel

)

)

Securitas Canada Ltd., Respondent ) Daniel McDonald, Counsel

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[1] This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age and creed, as well as reprisal for pursuit of a grievance.

ISSUES FOR DETERMINATION

[2] The purpose of this Interim Decision is to address the following matters:

(a) The applicant’s Request for Order dated June 20, 2012 seeking production of certain documents from the respondent; and

(b) The respondent’s Request for Order dated June 5, 2012 seeking production of certain documents and particulars from the applicant.

REQUEST FOR PRODUCTION OF THE APPLICANT

[3] The parties are required to disclose any documents that have “arguable relevance”. This is not a particularly high bar, but the party seeking production must establish relevance and “a ‘nexus’ or connection between the information or document sought and issues in dispute before the Tribunal”: see Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. Of Inquiry), at para.38 and Goodale v. Assured Parkway Collision, 2010 HRTO 1814 at para. 8. The applicant seeks production of the following documents:

Seniority Lists And GTA Assignment Listings For All Relevant Periods

[4] The applicant is a security guard. He alleges discriminatory treatment under his collective agreement. The relevant periods cited by the applicant are April, 2010 and June, 2010. This information forms the crux of the applicant’s allegations of differential treatment. These documents are arguably relevant and should be produced.

Birth Dates For Specific Individuals

[5] The applicant alleges age discrimination. He suggests that various individuals received preferential treatment in spite of the collective agreement due to their relative youth. He mentions specifically Arif Ali, Sunday Lapido, Rahat Shah, Heather Steward, Garrett Magill, Irphan Shaikh, Subakrishna Kamalanath, Mr. Mohsin, Gouthro Andrea and Tina Brine. The applicant has sought this information from the union but advises that the union does not have it. This information is arguably relevant and can be disclosed by the respondent through existing documents, suitably redacted to eliminate other personal and confidential information, or by provision of a summary sheet disclosing only that information.

CCTV And Access Control Records For HP Site

[6] The applicant requests production of the CCTV (video) and access control (passcard data) records for the period of his placement at the Hewlett-Packard (HP) site. He alleges differential treatment in that he was required to do far more work than other employees at the same site, which would be established by the CCTV and access control records. The respondent denies having any of that material, and indeed, after inquiries have been made, suggests that it no longer exists in any event.

Security Logs And CCTV For Apotex Site

[7] The applicant requests production of the CCTV (video) and access control records for the period of his placement at the Apotex site. He alleges that he was denied breaks at this site as a form of reprisal, which would be verified by the CCTV and access control records. The comments made in paragraph 6 herein are applicable to this request. If the respondent has these materials, there should be production of same. If the respondent confirms that it does not have them, then it cannot be ordered to produce materials that it does not possess.

Job Descriptions For Senior And Junior Security Officers At HP Site

[8] The applicant seeks production of the job descriptions to verify what other employees were supposed to be doing at the job site. He alleges that he was asked to do the work of other employees, presumably as a form of reprisal. The respondent claims to have provided the job descriptions previously. I have reviewed the document and conclude that the respondent has produced the job descriptions.

REQUEST FOR PRODUCTION OF THE RESPONDENT

[9] The respondent seeks production of the following documents:

Full And Complete Production Of All Medical Documentation

[10] The applicant alleges discrimination on the basis of age and creed, and reprisal for the pursuit of his grievance. He is not alleging, in a direct sense, discrimination on the basis of disability and/or the failure to accommodate his disability. The applicant states that part of the reprisal took the form of denying him necessary washroom breaks which he required due to a medical condition.

[11] The respondent seeks production of the applicant’s medical information. The applicant advises it has provided the medical information. The medical information is necessary only to the extent that the applicant must show that he has an underlying medical condition, that the respondent was aware of the medical condition and that such knowledge was utilized by the respondent to “punish” the applicant for asserting his various rights under the collective agreement and/or the Code. I accept that the applicant has provided the medical information requested previously. It is arguably relevant, if only to an incidental issue.

Particulars Of The Results Of Various Investigations And/Or Inquiries Carried Out And/Or Directed By Applicant’s Counsel

[12] The respondent maintains that there was frequent communication between applicant’s counsel and Mr. Joe Bonsu, President of United Steel Workers (USW), Local 5296. The communication took the form of the USW advising applicant’s counsel of various investigations, company positions and company actions. The respondent claims to have no knowledge of the actions and comments attributed to it in this regard.

[13] Any and all documentation from the applicant’s counsel and any all written responses from the union, including, but not limited to, correspondence, memoranda, e-mails, texts and/or notes, in the possession of the applicant and/or his counsel, is arguably relevant in that it pertains directly to the issue of differential treatment and the application of the collective agreement to the applicant’s employment situation. Similarly, any written material of any nature or kind provided to applicant’s counsel which purports to report on the outcome of any investigations is also arguably relevant and must be disclosed.

Request For Particulars

[14] The respondent makes two general requests for particulars: (1) for the results of the investigations and/or inquiries carried out and/or directed by applicant’s counsel; and (2) particulars of various positions and representations advanced by the applicant in the correspondence referenced in (1).

[15] The request for particulars is too vague and imprecise for a ruling to be made in that regard. Despite that, most of the information should be within the knowledge of the respondent and/or available in the documents to be produced as referred to in paragraph 13 herein. The respondent shall have the opportunity to cross-examine any applicant witnesses and/or present its own evidence that will permit this Tribunal to render an appropriate decision on the merits of the case. As such, I am not inclined to order any particulars per se, other than the information that may be forthcoming through the documents to be produced.

ORDER

[16] For all the foregoing reasons, I hereby make the following order:

a) Within 14 calendar days of the date of this Interim Decision, the respondent shall produce to the applicant seniority lists and GTA assignment lists for April, 2010 and June, 2012;

b) Within 14 calendar days from the date of this Interim Decision, the respondent shall produce documentation or a summary sheet, at its option, disclosing the birthdates of Arif Ali, Sunday Lapido, Rahat Shah, Heather Steward, Garrett Magill, Irphan Shaikh, Subakrishna Kamalanath, Mr. Mohsin, Gouthro Andrea and Tina Brine;

c) Within 14 calendar days from the date of this Interim Decision, the respondent shall provide confirmation that the CCTV and access control records for the HP site and the security logs and CCTV for the Apotex site are not in its possession and any information it may have as to the availability and/or existence of these materials from HP and/or Apotex;

d) Within 14 calendar days from the date of this Interim Decision, the applicant shall produce to the respondent any and all documentation from the applicant’s counsel and any all written responses from the union, including, but not limited to, correspondence, memoranda, e-mails, texts and/or notes, in the possession of the applicant and/or his counsel, and any written material of any nature or kind provided to applicant’s counsel which purports to report on the outcome of any investigations by the union

[17] The parties are reminded of their ongoing obligation to disclose arguably relevant documents.

Dated at Toronto, this 15th day of August, 2012.

“Signed by”

Kevin Cleghorn

Member