HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ralph Maze
Applicant
-and-
Genco Distribution of Canada Inc. and Lisa Hyndman
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Maze v. Genco Distribution of Canada Inc.
WRITTEN SUBMISSIONS
Ralph Maze, Applicant ) Self-represented
Genco Distribution of Canada Inc. and ) Nav Bhandal, Counsel
Lisa Hyndman, Respondents )
INTRODUCTION
1The purpose of this Interim Decision is to address the applicant’s Request for production of documents
BACKGROUND
2The applicant, who was employed as a driver with the organization respondent, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 24, 2010, which alleged that the respondents discriminated against him with respect to employment because of his disability and age. Specifically, he alleged that the respondents terminated his employment on June 11, 2010 because of his disability and age.
3The respondents filed a Response on March 17, 2011 which denied the allegation of discrimination. Specifically, the respondents stated that the applicant was terminated as part of restructuring. They stated that in determining who was going to be terminated, they conducted a review of employees based upon a number of objective criteria outlined in a formal evaluation matrix, and that the applicant’s score was at the bottom of the list of employees. According to the matrix, which was attached to the Response, the respondents considered the “most recent review score between July 1, 2009 and June 30, 2010”.
4On December 5, 2011, the Tribunal issued a Confirmation of Hearing Notice to the parties which informed them that the hearing is scheduled for June 7 and 8, 2012. The Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents. Rule 16 requires each party to deliver to every other party a list and copy of all arguably relevant documents in its possession by no later than 21 days after the date of the Notice.
5On December 28, 2011, the applicant filed a Request for an Order During Proceedings which requested that the respondents produce the following documents:
A list of employees with addresses and phone numbers in order to prepare his witness list.
The employee reviews of the other nine drivers in order to compare his review with the reviews of the other drivers.
Emails exchanged between Lisa Hyndman and John Klimsiak, Wayne White, and the Pittsburgh head office.
6On January 12, 2012, the respondents filed a Response which opposed the Request. The respondents stated that disclosing the list of employees with their addresses and phone numbers would breach their privacy, that the employee reviews of the other drivers are not relevant, and that the request for emails is overly broad.
ANALYSIS
7It 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.
8In 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….
9I will deal with the applicant’s Request for documents in chronological order. In my view, the applicant’s Request for a list of employees with addresses and phone numbers should be granted, but it should be limited to the drivers and supervisors/managers in his department. All these individuals have arguably relevant knowledge about the issues in the Application, and it would be unfair if the applicant was unable to call them as witnesses because he does not have their contact details.
10In my view, the applicant’s Request for the employee reviews of the other nine drivers should be granted, but it should be limited to the performance review that the respondents used for each driver (July 1, 2009 to June 30, 2010) when they were deciding whose employment would be terminated. The performance reviews are arguably relevant because, according to the Response, the respondents used them to create a formal evaluation matrix and to determine whose employment would be terminated.
11In my view, the applicant’s Request for emails exchanged between Lisa Hyndman and John Klimsiak, Wayne White, and the Pittsburgh head office should also be granted, but it should be limited to the emails that pertain to the termination of the applicant’s employment, and are not subject to solicitor-client privilege.
ORDER
12The Tribunal makes the following order:
- Within one week of the date of this Interim Decision, the respondents shall deliver to the applicant the following:
(a) a list of the drivers and supervisors/managers in his former department with addresses and phone numbers,
(b) the performance review that the respondents used for each driver (July 1, 2009 to June 30, 2010) when they were deciding whose employment would be terminated, and
(c) all emails exchanged between Lisa Hyndman and John Klimsiak, Wayne White, and the Pittsburgh head office that pertain to the termination of the applicant’s employment, and are not subject to solicitor-client privilege.
Dated at Toronto, this 7th day of May, 2012.
”signed by”______________
Ken Bhattacharjee
Vice-chair