Scharf v. Viscount Glass and Aluminum, 2012 HRTO 2379

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Scharf

Applicant

-and-

Viscount Glass and Aluminum and John Kaczmerek

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: December 20, 2012

Citation: 2012 HRTO 2379

Indexed as: Scharf v. Viscount Glass and Aluminum

APPEARANCES

Jason Scharf, Applicant

Shawn O’Connor, Counsel

Viscount Glass and Aluminum and John Kaczmerek, Respondents

John Westdal, Counsel

Introduction

1This Interim Decision deals with issues related to the production of documents in advance of a hearing that is scheduled to begin on January 14, 2013.

2The Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, as well as reprisal. The applicant alleges that he suffered a back injury at work that required his regular duties to be modified. The modifications included taking rest breaks and changing position. He alleges that the respondents failed in their duty to accommodate his disability, as they would not modify his work sufficiently to allow him to do this. He also alleges that their failure to accommodate included an unwillingness to let him take the breaks he needed to perform modified work, in that they accused him of taking excessive breaks and falsifying the times taken for breaks. He further alleges that when he continued to take the breaks he required, the respondents engaged in reprisal by harassing him through acts of surveillance, both in and outside of the workplace.

3On November 15, 2012, the applicant filed a Request for Order During Proceedings (the “Request”) seeking production of a number of documents. In their response to the Request the respondents set out their own request for the production of documents. In their correspondence with the Tribunal the parties indicated a willingness to produce a joint book of documents for the hearing. In order to address the requests and to discuss how the case would proceed a case management teleconference was held on December 13, 2012.

submissions

Applicant’s objections to late production

4Although the applicant had initially sought production of a number of documents in his Request, the respondents had addressed these to the applicant’s satisfaction by the time of the teleconference. However, at the teleconference the applicant raised an objection to four documents which the respondents had not produced until November 30, 2012. These documents are: the reports of a private investigator and 30 minutes of accompanying video surveillance footage; notes made by one of the corporate respondent’s managers in relation to a March 5, 2010 ergonomic assessment of the applicant; the same manager’s Significant Event Diary; and 8 hours of video surveillance footage of the applicant taken by the corporate respondent.

5The applicant argues that these were all documents in the possession of the respondent that could have and should have been produced in June of 2012, when the parties exchanged lists of arguably relevant documents and the documents themselves in accordance with Rule 16 of the Tribunal’s Rules of Procedure. The applicant argues that producing them now is prejudicial because it shortens his time to prepare for the hearing, and that the respondents should therefore not be allowed to file them with the Tribunal.

6The respondents indicate that their failure to disclose the documents in June was an oversight. They submit that, notwithstanding their failure to disclose on time, the applicant will suffer little prejudice as he received the documents at the end of November, leaving enough time to prepare for a mid-January hearing.

Respondents’ request for production

7The respondents have requested production of a number of documents that they maintain are arguably relevant. These are:

• the applicant’s tax returns and any documentation relating to income earned by the applicant but not reported on his tax returns for the period from 2007 to the present;
• the applicant’s vehicle insurance policies from 2007 to the present, documentation showing the mileage of the applicant’s vehicles in that period, as well as the vehicle registrations for all vehicles he currently owns;
• the applicant’s motorcycle licence, including the date he passed his motorcycle licencing test;
• all medical reports relating to the applicant, and a list of all medications he has taken from 2007 to the present;
• a copy of the decoded summary relating to the applicant held by the Ontario Health Insurance Plan (“OHIP”);
• documentation in relation to any employment the applicant has had since 2007, other than with the corporate respondent;

8The respondents had also requested documents from the applicant’s Workplace Safety and Insurance Board (“WSIB”) file, but as the applicant has agreed to provide the respondents access to the entire file, there is no longer dispute as to the production of those documents.

9The respondents argue that the documents relating to the applicant’s finances are arguably relevant to the issue of any claimed loss of earnings. The applicant indicated that his claim for loss of earnings is limited to the difference between the salary he would have earned from the corporate respondent for doing modified work and the amounts he received from the WSIB. On that basis, the applicant maintains that these documents are not arguably relevant to the claimed loss of earnings.

10The respondents submit that the documents regarding the applicant’s motor vehicles are arguably relevant in that they may show that the applicant was engaged in work outside of his employment with the corporate respondent at a time when he claimed to be only capable of modified work. They say they have witnesses who will also testify to this. They also maintain that if the applicant was using vehicles such as a snowmobile or motorcycle in the period in which he claims to be disabled, an inference can be drawn that he was exaggerating his disability, because the operation of such vehicles, by their nature, entails physical movements that are beyond the applicant’s prescribed restrictions.

11The applicant’s position in relation to the documents relating to motor vehicles is that the respondents are engaging in speculation about what those documents could mean. He argues that they are not arguably relevant, because nothing on the face of the documents would provide information about whether the applicant was engaged in physical activities that went beyond his prescribed restrictions.

12Regarding the medical reports, list of medications and OHIP summary the respondents maintain that these are arguably relevant, as the extent of the applicant’s disability is a central issue in this Application. The respondents argue that the applicant had an obligation to make the extent of his disability known to them, and that a failure to do so undercuts his argument that they failed in their duty to accommodate.

13The applicant’s position is that the respondents’ request is overly broad and an invasion of his privacy. He argues that, having agreed to disclose the whole of the WSIB file to the respondents, they now possess the relevant medical information and any further medical information is unnecessary.

analysis

Applicant’s objection to late production

14In my view it is not necessary at this stage to determine whether the four documents the applicant objects to will be admitted as evidence. There is scope between now and the hearing for the parties to resolve some or all of the issues in this Application, and it may be that it becomes unnecessary to address the concerns that the applicant has raised around late production. The parties are encouraged to file a joint book of documents. However, if the documents noted above remain in dispute, then the respondents can file these documents separately, and it will be open to the applicant to then make any arguments about their admissibility at the hearing.

Respondents’ request for production

15In McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paragraphs 12-13, the Tribunal set out the test for pre-hearing disclosure as follows:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLii 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

16In relation to the financial documents (tax returns and documentation regarding income that was not reported on tax returns), I am of the view that these are arguably relevant. The applicant states that his claim for economic loss is limited to seeking recovery of the difference between what he would have received in salary and the WSIB benefits. However, it is possible that if he engaged in employment other than for the corporate respondent, he may have sustained no economic loss at all. The financial documents are arguably relevant in that they could prove or disprove facts relating to this disputed issue.

17The documents relating to motor vehicles are also arguably relevant. A disputed issue is whether the applicant fully disclosed the extent of his disability. In addressing this issue the respondents may seek to explore what physical activities the applicant engaged in outside of work, including whether he was operating vehicles such as a snowmobile or motorcycle. The respondents have a foundation in their theory of the case and intended witnesses. In the circumstances of this case, this request goes beyond mere speculation or “fishing”. While it may be that nothing on the face of the documents demonstrates whether the applicant engaged in physical activities, the documents may nonetheless provide a foundation for the respondents to pursue this issue. Similarly, documentation in relation to any employment the applicant may have had with other employers may either provide information as to the nature and physical demands of such employment, may provide a foundation for exploring this issue, and is arguably relevant to the issue of mitigation. For these reasons I conclude that these groups of documents are arguably relevant.

18As I have noted, the extent of the applicant’s disability and his disclosure of it are central to this Application. The medical reports and list of medications from 2007 to the present and the decoded OHIP summary may shed light on facts related to the disputed issue of whether the applicant fully disclosed the nature of his disability. I conclude that these documents are also arguably relevant.

19The parties raised the issue of whether it would be feasible to produce some or all of these documents in time for the scheduled start of the hearing. This is not a reason to delay the hearing. It was open to the respondents to have requested production of all of these documents in June of 2012, upon being provided with the applicant’s list of arguably relevant documents, rather than some five months later in response to the applicant’s November 15, 2012 Request. The applicant is directed to produce to the respondents all of the arguably relevant documents noted above that are in his possession, and to use reasonable diligence to obtain and produce without delay any of the documents not in his possession. The hearing will proceed as scheduled.

order

20The applicant is to produce without delay the documents listed in paragraph 7 above that are in his possession. The applicant is to use reasonable diligence to obtain and produce without delay any of those documents which are not in his possession.

21The parties are to file their documents with the Tribunal, preferably in the form of a joint book, by 5 p.m. on January 8, 2013.