Oxley v. Vaughan (City), 2012 HRTO 582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emmanuel Oxley Applicant

-and-

The Corporation of the City of Vaughan and Paul Armstrong Respondents

-and-

Vaughan Professional Firefighters Association Intervenor

INTERIM decision

Adjudicator: Douglas Sanderson Date: March 21, 2012 Citation: 2012 HRTO 582 Indexed as: Oxley v. Vaughan (City)

wRITTEN SUBMISSIONS

Emmanuel Oxley, Applicant ) Self-represented The Corporation of the City of Vaughan ) Glenn Christie, Counsel and Paul Armstrong, Respondents )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin and citizenship. This Interim Decision addresses a Request for Order during Proceedings ("the Request") filed by the applicant on March 1, 2012, seeking production of several documents. The respondents oppose the Request and filed a joint Response to a Request for Order ("the Response") on March 13, 2012.

Background

2The applicant is a firefighter employed by the organizational respondent. Amongst other things, the applicant alleges the respondent discriminated against him in violation of the Code by not allowing him to drive fire vehicles. The respondents deny all allegations of discriminatory behaviour.

The Request

3In the Request, the applicant seeks production of the following:

• A copy of the city policy on driving;
• A copy of the city insurance policy highlighting the paragraph used in making their decision (not to allow the applicant to drive);
• A copy of his driver's abstract from June 1, 2009 to January 31, 2010;
• A copy of all of Mr. Armstrong's notes used in making that decision (not to allow him to drive); and
• All expert reports, including e-mails and electronic correspondence, related to or touching on their decision not to allow the applicant to drive from September 1, 2009 to December 31, 2009.

4In their Response, the respondents noted that a party seeking disclosure must satisfy the threshold of "arguable relevance" by demonstrating a nexus between the information or document sought and issues in dispute before the Tribunal. Regarding the applicant's specific requests, the respondents responded as follows:

• There is no city policy on driving that is arguably relevant to any matter in this proceeding;
• The city's insurance policies are not arguably relevant documents in this Application;
• The applicant's driver's abstract is not arguably relevant to the Application and is not in any event a City of Vaughan document and the applicant can obtain it himself;
• Mr. Armstrong does not have any notes which are arguably relevant to matters at issue in this Application; and,
• There are no expert reports in the possession or control of the respondents that relate to any matter in issue.

Accordingly, the respondents submitted that the Tribunal should deny the Request because the requested documents do not meet the threshold of arguable relevance, do not exist or are overly broad and constitute a fishing expedition.

Analysis

5At 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 documents in question may prove or disprove a fact in issue in the dispute.

6In the Request, the applicant did not explain why the organizational respondent's policy regarding driving or its insurance policy are arguably relevant. There is also nothing in the Application that would make the arguable relevance of such a policy obvious, e.g., if the respondents cited a driving policy or insurance policy when informing the applicant that he was not permitted to drive fire trucks. Consequently, there is no basis for concluding that these documents are arguably relevant.

7Any notes made by the individual respondent regarding a decision not to allow the applicant to drive fire vehicles would clearly be arguably relevant, as would any expert report or correspondence addressing such a decision and must be disclosed, if they exist, which the respondents deny. The applicant provided no reason to believe that Mr. Armstrong made any notes regarding the applicant's entitlement to drive fire vehicles or that the respondents commissioned any expert reports on that subject. Accordingly, the request for disclosure of these documents appears to be entirely speculative.

8Although the applicant's driver's abstract could in my view be arguably relevant, it is not the respondents' document and I agree that the respondents should not be required to produce documents the applicant can procure himself.

Order

9The Request is denied.