Rong v. Gold Line Telemanagement Inc., 2012 HRTO 2367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gang Rong

Applicant

-and-

Gold Line Telemanagement Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: December 19, 2012

Citation: 2012 HRTO 2367

Indexed as: Rong v. Gold Line Telemanagement Inc.

WRITTEN SUBMISSIONS

Gang Rong, Applicant ) Self-represented

Gold Line Telemanagement Inc., ) Sylvia Tint, Counsel

Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to deal with the applicant’s request for production of documents

BACKGROUND

2Between 2007 and 2011, the applicant, who self-identifies as Chinese, worked as a software developer/web programmer in the respondent’s Information Technology (“IT”) department. According to the applicant, 90% of the staff of the IT department were Iranian, and he was the only non-Iranian on his team of four.

3On January 3, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his race. First, he alleged that during his tenure of employment, all the members of his team received raises except for him. Second, he alleged that during the last six to seven months of his employment, his manager and a co-worker yelled at him and falsely accused him of not performing his job properly, which forced him to quit.

4On February 29, 2012, the respondent filed a Response, which denied the allegations of discrimination. First, the respondent denied that the applicant was underpaid compared to his co-workers. The respondent stated that one of the other members of the applicant’s team, who was Iranian, received a lower salary than the applicant. Second, the respondent admitted that it raised work performance issues with the applicant, but denied that it singled out him out because of his race. The respondent stated that during the last eight to ten months of the applicant’s employment, his work performance declined. The respondent stated that his work was low quality or not completed on time, but he spent a lot of time browsing the internet.

5On August 8, 2012, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was rescheduled for April 25 and 26, 2013.

6On August 6 and 27, 2012, prior to the disclosure deadline for arguably relevant documents, the applicant filed two Requests for an Order During Proceedings (“RFOP”) for production of documents. On August 17 and September 7, 2012, the respondent filed Responses to the Requests. Throughout August and culminating on August 28, 2012, the respondent delivered a list and copy of all arguably relevant documents in its possession to the applicant.

7On September 13, 2012, the Tribunal issued a CAD, which noted that the applicant has not communicated with the Tribunal to indicate whether or not the respondent’s disclosure has complied with his production requests. The CAD also stated:

The applicant may file a further RFOP if he believes that the respondent is in possession of arguably relevant documents that have not been produced. I would note that his August 6, 2012 RFOP was vague and lacking in particulars, and did not explain the reasons for the Request. If the applicant files a further RFOP, he is directed to particularize which documents he is seeking and explain why they are arguably relevant and should be disclosed. Specifically, he should explain the connection between the document sought and the 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.

8On September 24, 2012, the applicant re-filed his second RFOP. In a cover letter, he also stated: “I hope to possibly revise my RFOP and seek the documents in the respondent’s possession.” To date, the applicant has not filed a revised RFOP. In the circumstances, I will rely on the submissions in the applicant’s original RFOPs and the respondent’s submissions in response.

ANALYSIS

9It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding.

10In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal explained its approach at paras. 8-11:

The 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 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

The Tribunal is also sensitive to privacy issues….

11The applicant has the burden of demonstrating that the documents sought are arguably relevant to the issues in dispute in the proceeding before the Tribunal. In his RFOPs, the applicant requested that the Tribunal order the respondent to produce the following records:

1. the source code repository software;

2. the computer desktop, temporary internet files, temp, and favourites of his other team members;

3. the telephone call history of all members of his team; and

4. the e-mails from the respondent’s head office to employees, which confirmed work hours.

12With respect to the records in 1), the applicant stated that the source codes committed by a software developer to the repository are relevant because they are the most important measure of a developer's performance, and the repository will show that he contributed more source codes than all the other members of his team combined.

13The respondent, on the other hand, denied that the quantity of source codes committed by a software developer to the repository is relevant. The respondent stated that such data merely shows that a developer was doing his or her job; it does not show the quality of the work.

14There is clearly a dispute between the parties as to whether there is a relationship between the quantity of source codes committed by a software developer to the repository and the developer’s work performance. This is an issue that will be determined at the hearing. At this stage, I find that the documents sought are arguably relevant because they have some relevance to the issue of work performance. The respondent stated that it can produce a screen print copy of a chart from the repository entitled “Commits by Author”, which shows the number of entries by each team member, and a chart entitled “Percentage of Authorship”, which weighs and values the entries made by each team member, for each of the five major projects that the applicant worked on during his tenure of employment. Accordingly, the Tribunal orders the respondent to produce such charts.

15With respect to the records in 2), the applicant stated that his team members' computer desktop, temporary internet files, temp, and favourites are relevant because they will show that the other members of his team often browsed the internet and played videos for entertainment.

16The respondent, on the other hand, denied that the amount of time that the applicant’s co-workers spent on the internet or played videos is relevant. The respondent admitted that employees other than the applicant engaged in such activities. Rather, the respondent stated that the applicant’s performance issue related to the fact that he spent time browsing the internet instead of completing his work in a timely manner.

17The respondent is not taking the position that the applicant spent more time browsing the internet than his co-workers. Accordingly, I find that the documents sought are not arguably relevant because there is no nexus to the issue of work performance.

18With respect to the records in 3), the applicant stated that his team’s telephone call history is relevant because it will show that the other members of his team often made personal, non-work related calls during work hours.

19The respondent, on the other hand, denied that the applicant’s co-workers’ telephone call history is relevant. The respondent stated that its concerns about the applicant’s work performance had nothing to do with the amount of time that he spent on the telephone.

20The respondent is not taking the position that the applicant spent more time on the telephone than his co-workers. Accordingly, I find that the documents sought are not arguably relevant because there is no nexus to the issue of work performance.

21With respect to the records in 4), the applicant stated that the e-mails from the respondent’s head office to employees, which confirmed work hours, are relevant because they show that punctuality was such an issue with employees in the company that the head office had to take action. The applicant stated that he will show that he was a punctual employee. The respondent, on the other hand, stated that such e-mails are not relevant. Notwithstanding its position, the respondent stated that it disclosed the e-mails in question to the applicant subsequent to receiving his RFOPs. Accordingly, I find that this particular request is moot.

ORDER

22The Tribunal makes the following orders:

1. Within two weeks of the date of this Interim Decision, the respondent shall deliver to the applicant copies of a chart from the repository entitled “Commits by Author”, which shows the number of entries by each team member, and a chart entitled “Percentage of Authorship”, which weighs and values the entries made by each team member, for each of the five major projects that the applicant worked on during his tenure of employment.

2. The applicant’s request for production of other documents is denied or is moot.

23I am not seized of this matter.