Ronald Ihasz v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, 2012 HRTO 2275

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: December 5, 2012

Citation: 2012 HRTO 2275

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 (the “first Application”) and 2012-10882-I (the “second Application”), 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. In Interim Decision 2012 HRTO 2043, the Tribunal partially granted the applicant’s request for disclosure of documents related to a job competition. The purpose of this Interim Decision is to address two Requests for an Order During Proceedings (the “Requests”) the respondent filed respectively on November 8 and November 14, 2012, seeking production of certain documents.

Background

2The applicant worked for the respondent as a Tax Administration Manager (“TAM”) and specialized in the Employer Health Tax. The respondent identified the applicant as one of the employees to be transferred to the Canada Revenue Agency (“CRA”) as part of the Harmonized Sales Tax initiative. The applicant alleges that the respondent targeted him for transfer because of his disability and because of his previous human rights complaints and therefore blocked his attempts to remain employed with the respondent rather than transfer to the CRA. Ultimately, the CRA did not accept the applicant for employment because it did not approve his “Reliability Status” because of previous criminal convictions. The respondent designated him to be a surplus employee and the applicant alleges the respondent denied his request to be accommodated by placing him in TAM positions.

The Requests for Production

3On November 8, 2012, the respondent filed a Request seeking the following documents:

1. A complete and unredacted copy of the letter from the CRA to the applicant dated April 15, 2011 informing the applicant that the CRA did not approve his Reliability Status and therefore he would not become an employee of the CRA (“the CRA rejection letter”); and

2. A complete and unedited copy of the Supplementary Section 40/41 Report prepared by the Canadian Human Rights Commission (“CHRC”) in CHRC File # 20110709, listing the applicant as the “complainant” and the CRA as the “respondent” (the “CHRC Report”).

4The respondent submitted that the applicant referred to the CRA rejection letter in the first Application and also speculated in the first Application and the Reply in the first Application that the CRA’s decision to reject him was caused by the respondent because the applicant refused to withdraw an earlier contravention application to the Tribunal. The respondent noted that the applicant stated in the first Application that he filed a complaint at the “federal level” regarding the CRA’s decision to reject him for employment. The respondent submitted that on June 18, 2012 the applicant provided the respondent with two pages of the CHRC Report which provided limited information about his complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”).

5The respondent submitted that on September 28, 2012 it requested a copy of the CRA rejection letter and the complete Supplementary Section 40/41 Report prepared by the CHRC, including copies of any and all documents incorporated by reference in that report. The respondent stated that on October 2, 2012 the applicant provided the applicant with a redacted copy of the rejection letter and declined to produce the CHRC Report because it was privileged and was outside of the scope of Application number 2011-10019-I.

6The respondent submitted that the applicant alleges that the respondent committed a reprisal by causing the CRA to reject him for employment. Consequently, the respondent is entitled to adduce any evidence regarding the CRA’s decision in order to defend itself regarding this allegation, including any information included in the CRA rejection letter. The respondent submitted that the CRA rejection letter is therefore at least arguably relevant to the issues arising in the first Application and the respondent is entitled to the entire letter.

7Regarding the CHRC Report, the respondent submitted that the applicant specifically referred to the document in his pleadings, is apparently relying on certain portions of the report, but has failed to identify any basis on which to assert privilege. The respondent submitted that the CHRC Report does not come within any category of privilege and, in any event, the applicant waived any privilege when he partially disclosed the document, relying upon OPSEU (Knight) and the Crown in Right of Ontario (Ministry of Correctional Services) (1994) GSB #2421/92. The respondent submitted that the applicant has put the CHRC Report directly into issue, but has selectively disclosed portions of the Report that presumably bolster his case. The respondent submitted that procedural fairness requires that the Tribunal order production of the CHRC Report in its entirety in order to permit the respondent to make full answer and defence. The respondent also submitted that the CHRC Report is arguably relevant to the issue of why the CRA rejected the applicant for employment.

8On November 14, 2012, the respondent filed a Request seeking the Tribunal to order the CHRC to produce a copy of the CHRC Report and a copy of the CHRC’s letter to the applicant dismissing the applicant’s complaint pursuant to section 41(1)(d) of the CHRA. The respondent essentially repeated its submissions from its Request of November 8, 2012 regarding the CHRC Report, but submitted that an order required the CHRC to produce the document is required because the applicant stated that he destroyed his copy of the Report when he learned the CHRC would not deal with his complaint pursuant to section 41(1)(d) of the CHRA. The respondent submitted that the first Application and the applicant’s complaint to the CHRC appear to overlap because the applicant seems to allege that the CRA and respondent caused his rejection by the CRA for reasons other than his criminal convictions.

9On November 22, 2012, the applicant filed a Response to a Request for an Order (the “Response to Request”) opposing the Requests. The applicant submitted that the respondent did not request these documents in its Form 2 (Response) and asserted that the documents are privileged for his appeal of the CHRC’s decision to dismiss his complaint. The applicant also submitted that he no longer has copies of the requested documents and in any event they are not relevant to Application 2011-10019-I, which deals with his selection for transfer to the CRA, replacement by the respondent in November 2010, and denial of accommodation. However, the applicant provided an unredacted copy of the CRA rejection letter.

Analysis and Decision

10At the pre-hearing stage, the Tribunal will order disclosure of documents if the requesting party establishes they are arguably relevant, i.e., that they may prove or disprove a fact in issue in the dispute. The Tribunal may decline to order disclosure documents that are privileged or raise privacy concerns. See McKay v. Toronto Police Services Board, 2009 HRTO 1220. A finding that a document is arguably relevant does not imply that the document will actually be found to be relevant or admissible at a hearing.

11I agree with the respondent that the CHRC Report and the letter from the CHRC dismissing his complaint under the CHRA are arguably relevant to the issues arising in these Applications. The applicant put his complaint to the CHRC in issue by referring to it in the first Application and put the CHRC Report in issue by referring to it in his Reply. It appears that the complaint to the CHRC alleges the CRA rejected the applicant for employment for reasons other than those cited in the CRA rejection letter and the Applications assert that the respondent caused the CRA to reject the applicant as a reprisal. In my view, any information the applicant provided to the CHRA regarding his rejection by the CRA is arguably relevant to these Applications, as are the reasons the CHRC gave for declining to deal with complaint. The applicant has not provided any basis for concluding that either the CHRC Report or the CHRC’s letter dismissing the complaint is privileged. In any event, I agree that the applicant cannot rely on selectively chosen parts of the CHRC Report and, having disclosed part of the Report, has waived any privilege that may attach to the document. The fact that the respondent did not identify these documents in the section of its Responses entitled “Important Documents the Applicant Has” did not preclude it from requesting them at a later time.

12The applicant has provided an unredacted copy of the CRA rejection letter; therefore, it is unnecessary to make an order regarding this document.

13I am not satisfied that it is necessary to order the CHRC to produce these documents. The documents in question are arguably relevant because the applicant put them in issue in this Application and it appears that he intends to rely upon them. The applicant indicated that he continues to pursue his complaint to the CHRC and is presumably entitled to access the contents of his complaint file. In these circumstance, I find it appropriate to direct the applicant to obtain and disclose the CHRC Report and the letter from the CHRC in which it informed the applicant that it would not deal with his complaint pursuant to section 41(1)(d) of the CHRA.

Order

14Within 14 days of the date of this Interim Decision, the applicant shall obtain and disclose to the respondent the following documents:

1. A complete and unedited copy of the Supplementary Section 40/41 Report prepared by the Canadian Human Rights Commission (“CHRC”) in CHRC File # 20110709, listing the applicant as the “complainant” and the CRA as the “respondent”; and,

2. A complete and unedited copy of the CHRC’s letter to the applicant, including any attachments, dismissing the applicant’s complaint pursuant to section 41(1)(d) of the CHRA.

Should the applicant fail to comply with this order, then the Tribunal may take any or all of the steps in Rule 5, including not permitting the applicant to adduce these documents into evidence.