Wagner v. Roadtrek Motorhomes Inc., 2012 HRTO 646

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Wagner

Applicant

-and-

Roadtrek Motorhomes Inc.

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 28, 2012

Citation: 2012 HRTO 646

Indexed as: Wagner v. Roadtrek Motorhomes Inc.

1The applicant, Scott Wagner, has filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s request for the production of documents from the respondent and the failure of the respondent and applicant to disclose documents and information about witnesses within the required timeframe.

BACKGROUND

2The applicant filed his Application on June 7, 2010. The Application alleges discrimination in employment on the basis of disability. The Application alleges that that the respondent discriminated against the applicant when it decided not to recall the applicant to work following a plant wide layoff in October 2008. The Application alleges that the respondent’s decision to not recall the applicant was related to not wanting to accommodate the applicant’s disability. The Application also raises allegations of earlier workplace harassment.

3The respondent filed its Response on December 23, 2010 denying the allegations of discrimination. The applicant filed a Reply to the Response on March 15, 2011.

4On November 18, 2011 Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing was scheduled for May 1, 2 and 3, 2012. The Notice also set out of the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses, and informed the parties that the disclosure deadline was March 19, 2012.

5The respondent has not met the disclosure deadline. It has not disclosed its arguably relevant documents nor provided information about the witnesses it intends to call.

6Pursuant to Rule 16 of the Tribunal’s Rules of Procedure, all arguably relevant documents in the possession of a party must be disclosed to other parties no later than 21 days after the Tribunal sends a Confirmation of Hearing and copies of documents intended to be relied upon in the hearing are required to be exchanged no later than 45 days prior to the first scheduled hearing day. Pursuant to Rule 17, parties must exchange witness lists and a summary of expected evidence no later than 45 days prior to the first scheduled hearing day.

7The applicant has disclosed the arguably relevant documents he intends to rely on but has not provided information about the witnesses he intends to call.

8On January 24, 2012 the applicant filed a Request for an Order during Proceedings seeking a copy of the applicant’s personnel and/or human resources file from the respondent from the year 2000 to the present. The respondent has not filed a response to this request.

DECISION

9If the respondent plans to introduce documents or witnesses into evidence at the hearing, it must comply with Rules 16 and 17 immediately, and forward these materials to the applicant and the Tribunal. If the applicant plans to call witnesses he must comply with Rule 17 immediately and forward information about his intended witnesses to the respondent and the Tribunal. Failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to a party to introduce documents or the evidence of witnesses they did not disclose.

10The applicant’s request for a copy of his personnel and/or human resources file from 2000 to the present is granted.

11The 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 the issues in dispute before the Tribunal. See Lampi v. Princess House Products Canada Inc., 2008 HRTO 1.

12I am satisfied that there is information in the applicant’s personnel and/or human resources file that would be arguably relevant given the nature of the issues raised in the Application. I have no submissions before me to suggest that this request may be overly broad.

13Under the circumstances the respondent is ordered to disclose to the applicant his personnel and/or human resources file from 2000 to the present.

14The Tribunal notes that this order does not mean that all of the information in the applicant’s personnel and/or human resources file will necessarily be admitted into evidence.

THE RESPONDENT’S REQUEST TO DISMISS FOR DELAY

15The respondent submits in its Response that the Application should be dismissed for delay pursuant to section 34(1) of the Code. If the respondent wishes to pursue this request it can raise it as a preliminary issue at the hearing.