Ronald Ihasz v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, 2012 HRTO 2043

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Ihasz Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: October 25, 2012 Citation: 2012 HRTO 2043 Indexed as: Ihasz v. Ontario (Revenue)

WRITTEN SUBMISSIONS

Ronald Ihasz, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, Respondent Paul Meier, Counsel

1This Interim Decision concern two Applications, 2011-10019-I and 2012-10882-I, filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), both of which allege discrimination with respect to employment because of disability and reprisal or threat of reprisal. In Interim Decision 2012 HRTO 953, the Tribunal consolidated the Applications, which are scheduled to be heard together on January 14, 15 and 16, 2013. The purpose of this Interim Decision is to address a Request for an Order During Proceedings (the “Request”) the applicant filed on September 18, 2012, seeking production of certain documents.

The Applications

2In his Applications, the applicant states that he was employed by the respondent as a Tax Administration Manager (“TAM”) and specialized in the Employer Health Tax. He identifies himself as a person with a disability, clinical depression, and he asserts that the respondent was well aware of his condition.

3In Application 2011-10019-I (the “first Application”), the applicant states that he filed two previous human rights complaints that were settled in February 2004. The applicant states that in March 2010 the respondent informed him that he would be transferred to the Canada Revenue Agency (“CRA”) as part of the Harmonized Sales Tax initiative. The applicant alleges that the respondent refused his request to be accommodated by allowing him to remain with the respondent in a permanent managerial position. He also asserts that the respondent targeted him for transfer because of his disability and because of his previous human rights complaints. The applicant alleges that he was unsuccessful in a job competition for a TAM position in Hamilton, for which he was interviewed in October 2010, because the respondent was intent on transferring him out of its service. Ultimately, the CRA did not accept the applicant for employment and the respondent designated him to be a surplus employee.

4In Application 2012-10882-I, the applicant states that his claim for long-term disability benefits was denied; therefore, he informed the respondent that he would return to work. The applicant alleges that he asked the respondent to accommodate him by placing him in his “home” position of a TAM in Mississauga and later to a TAM position in North York, but the respondent denied both requests. Instead, the respondent designated him as surplus. The applicant characterizes the respondent’s actions as a failure to accommodate his disability and a reprisal for his earlier human rights complaints.

The Request for Production

5The applicant seeks three categories of documents as follows:

1. Documents and e-mail messages to and from the CRA regarding the applicant’s original selection and transfer to the CRA;
2. Documents and e-mail messages to and from the CRA regarding the applicant’s transfer rejection by the CRA; and,
3. The scoring summary and the applicant’s scored documents in the Hamilton TAM competition held in October 2010.

6The applicant submitted that these documents will demonstrate the respondent’s discriminatory and retaliatory conduct, that the respondent conspired to ensure the CRA rejected him in order to have him placed on surplus and that the respondent ensured that he did not win the Hamilton TAM competition.

7The respondent filed a Response to a Request for Order on October 3, 2011. The respondent noted that it takes the position that applicant’s allegations regarding the decision to transfer him to the CRA are untimely, since the respondent informed the applicant of that decision on or about March 2, 2010, but the applicant did not file the first Application until October 6, 2011. In any event, the respondent submitted that there are no documents under the first category of disclosure the applicant seeks. The respondent submitted that it provided the CRA with a list of employees it identified for transfer and has provided that list to the applicant.

8The respondent submitted that, following a review, it disclosed the documents in its possession under the second category of disclosure the applicant seeks.

9Regarding the third category of disclosure sought by the applicant, the respondent takes the position that allegations regarding the Hamilton TAM competition are untimely, as the position was posted in September 2010, that the applicant’s suspicions about the competition are entirely speculative and do not create a factual foundation for disclosure. The respondent further submitted that the applicant should have raised any concerns regarding the competition in a timely manner and, failing resolution, he could have filed a timely grievance to the Public Service Grievance Board. Finally the respondent submitted that documentation regarding the Hamilton TAM competition has no relevance to the first Application.

10Consequently, the respondent has restricted its disclosure regarding the third category of documents the applicant seeks to the competition’s scoring summary, the written assignment and the interview questions, which it provided to the applicant on September 28, 2012. The respondent explained that the scoring summary includes the applicant’s scores in the presentation, oral interview and written assignment components of the competition. The respondent declined, however, to disclose copies of the scores assigned to him by each member of the competition panel or the scoring of his references by each panel member, which the applicant again requested following the respondent’s limited disclosure.

Analysis and Decision

11At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. A finding that a document is arguably relevant does not imply that the document will actually found to be relevant or admissible at a hearing.

12The respondent submitted that it has disclosed all the documents it has regarding under the first and second categories of documents the applicant requested. At this point, there is no basis to conclude that there are any outstanding documents under these categories.

13The applicant alleges, amongst other things, that the respondent conducted the Hamilton TAM competition in a dishonest manner to ensure that he was not selected for the position. The Tribunal has not ruled on the timeliness of this allegation (or any other allegation) and the respondent has candidly acknowledged that it has not disclosed all of the documents the applicant requested regarding this competition. The Application challenges the integrity of the Hamilton TAM competition and I am satisfied that the scores the individual members of the competition panel assigned to the applicant and his references are arguably relevant to this issue. The respondent did not assert privilege or any privacy concerns and whether the applicant could have filed a grievance regarding the competition is irrelevant.

Order

14Within 14 days of the date of this Interim Decision, the respondent shall disclose to the applicant the scores assigned to the applicant by each member of the Hamilton TAM competition panel in respect of each component of the competition and shall file with the Tribunal a Statement of Delivery (Form 23) confirming delivery to the applicant.

15The request for disclosure of documents in the first and second categories, described above, is dismissed.