Mallette v. Poly Fiberglass Industries (Thunder Bay) Ltd., 2012 HRTO 1942

Human Rights Tribunal of Ontario

B E T W E E N:

Richard Mallette

Applicant

-and-

Poly Fiberglass Industries (Thunder Bay) Ltd.

Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: October 12, 2012

Citation: 2012 HRTO 1942

Indexed as: Mallette v. Poly Fiberglass Industries (Thunder Bay) Ltd.

1This is an Application under s. 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 on the basis of age.

2The Application is scheduled to be heard on December 19 and 20, 2012.

3The purpose of this Interim Decision is to address the applicant’s Request for an Order requiring the respondent to produce certain documents and/or particulars.

BACKGROUND

4The applicant was employed by the respondent as a maintenance person. He alleges that, in June 2010, the respondent’s manager asked the applicant how old he was and how long he intended to continue working. The applicant, who was almost 64 years old at the time, alleges that he was laid off after telling the respondent his age and that he had no plans to retire.

5The respondent denies these allegations. It submits that the applicant was laid off from employment in June 2010 due to a shortage of maintenance work.

6The applicant disputes that there was a shortage of maintenance work at the time of his layoff. He also alleges that, around the time of his layoff, the respondent engaged another individual to perform maintenance work.

PRODUCTION OF DOCUMENTS

7On September 14, 2012, the applicant filed a Request for an Order During Proceedings requiring the respondent to produce the following:

1. A list of all employees performing maintenance work for the respondent from June 2010 to date;
2. Contact information for the above-noted employees; and
3. A copy of the applicant’s personnel file.

8The respondent has not responded to the Request and the time for doing so has now elapsed.

9The test for the production of documents and/or particulars is arguable relevance.

10In my view, the applicant’s Request for a list of employees performing maintenance work for the respondent from June 2010 onwards should be granted. To the extent that the respondent had other employees performing maintenance work following the applicant’s layoff, this is arguably relevant to respondent’s contention that it laid the applicant off because it did not have enough maintenance work for him to do.

11The applicant’s Request for contact information for such employees should also be granted, within certain limits. If the respondent did have other employees performing maintenance work within a relatively short time following the applicant’s layoff, then such individuals have arguably relevant knowledge about the issues in the Application and it would be unfair if the applicant was unable to call them as witnesses because he does not have their contact information. Maze v. Genco Distribution of Canada Inc., 2012 HRTO 898. On the other hand, thus far, I am not persuaded that the applicant ought to be provided with contact information for employees who were not engaged to perform maintenance work for the respondent until well after the applicant had left the workplace. In all of the circumstances and at this stage, I find it appropriate to direct the respondent to provide the applicant with contact information for employees who performed maintenance work for it in respect of any part of the period from June to December 2010.

12Finally, insofar as it contains information regarding the applicant’s employment with the respondent, and in the absence of any objection from the respondent, I am satisfied that the applicant’s personnel file is arguably relevant to the issues to be determined and ought to be produced.

ORDER

13The Tribunal makes the following order:

1. Within seven (7) days of the date of this Interim Decision, the respondent shall deliver to the applicant the following: a. A list of all employees performing maintenance work for the respondent from June 2010 to date, together with an indication of the time period during which each employee performed maintenance work for the respondent; b. Contact information for any employees who performed maintenance work for the respondent in respect of any part of the period from June 2010 to December 2010; and c. A copy of the applicant’s personnel file.