Fawzy v. Paris Jewellers Ltd., 2012 HRTO 1990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nader Farid Fawzy

Applicant

-and-

Paris Jewellers Ltd.

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: October 22, 2012

Citation: 2012 HRTO 1990

Indexed as: Fawzy v. Paris Jewellers Ltd.

WRITTEN SUBMISSIONS

Nader Farid Fawzy, Applicant ) Self-represented

Paris Jewellers Ltd., ) Rich Appiah, Counsel Respondent )

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") on January 26, 2011. The Application alleges reprisal for having reported complaints of sexual harassment to his employer, the respondent.

2This Interim Decision addresses the applicant's request for the production of documents from the respondent that were addressed but not decided in a previous Interim Decision (2012 HRTO 1626), namely:

1. Budget, sales and hours for the years of 2010, 2011 and 2012 with taxes for the stores P26 and P28; and

2. Budget, sales and hours for the years of 2010, 2011 and 2012 for all the stores within the company.

3In that previous Interim Decision, at para.14, I noted that:

...the respondent claims the applicant's employment was terminated due to his poor performance, including "deficiencies" in meeting sales targets by him and by the store he managed in Brampton for which he was responsible. The respondent argues that many factors are at play at other stores which mean a comparison is not relevant; however, the respondent obviously made some comparison between the applicant's sales figures and others to conclude he was deficient. I am therefore inclined to agree with the applicant that documents are arguably relevant if they indicate the sales targets met by the other managers and by their stores in the time period when the applicant worked. I do not agree that sales targets at other stores before and after the applicant worked are arguably relevant; however, I agree that documents which show the sales targets of the applicant's store before and after he worked are.

4I then directed the respondent "to provide to the applicant and file with the Tribunal... an explanation for concluding that the applicant's sales targets, and those of his store, were 'deficient'."

Submissions

5The respondent filed submissions which state that the reasons for finding the applicant "deficient" were that he had not met targets that the respondent set for the applicant's store that opened in December 2010. The respondent refers to documents filed of targets for the store's sales and targets for the personal sales of the applicant, and maintains that the failure to meet these sales targets, as well as the extra hours the applicant scheduled for employees were the reasons for finding the applicant "deficient". The respondent therefore argues that the production of the documents with respect to other stores or with respect to the applicant's store before and after he worked there are irrelevant.

6The applicant continues to believe that the documents he seeks are arguably relevant. He filed submissions which state that the store he managed continued after he left to perform "under" targets and yet the new manager's employment was not terminated as a result.

Decision

7The 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 issues in dispute before the Tribunal. Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 at paragraph 38.

8The respondent has not explained why it set the targets that it did for the applicant's store, nor has it explained whether the targets changed once the applicant left, and if the targets did not change, whether the new manager was able to meet them.

9In my view, the applicant has shown that there is a connection between the documents he has requested and the allegations he has raised in the Application. The documents could help in analyzing whether the respondent had reasons to terminate the applicant's employment that were not connected to the applicant's report of sexual harassment but to his performance. I find to be arguably relevant the budgets as well as the targets of sales and hours as compared to the actual sales and hours of the applicant's store after he left (it does not appear to have been operating before the applicant worked there), and of the respondent's other stores which I can only assume were relevant to the setting of the targets for the applicant's store.

10The respondent operates stores throughout Canada, and has argued that differences between stores make it difficult to compare them, and the applicant has not made an argument to suggest that the contexts for all stores are comparable. Therefore, the applicant's request is granted with respect to the respondent's stores in Southern Ontario only.

11The respondent has 30 days to provide this information to the applicant and to the Tribunal.