HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bile Warsame Dore
Applicant
-and-
Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Dore v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Bile Warsame Dore, Applicant ) Richard Millar, Counsel
Toronto Transit Commission, ) Michelle Dobranowski, Counsel
Respondent )
1The applicant filed this Application on September 20, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to services, goods and facilities on the basis of race, colour, ancestry, place of origin and ethnic origin.
2The applicant alleges that on November 9, 2011, while riding as a passenger on the respondent’s transit system, he was harassed and subjected to discriminatory comments by a bus driver.
3Also on September 20, 2011, the applicant filed a Request for an Order during Proceedings (“RFOP”) asking the Tribunal to order the respondent to provide the full name of the bus driver. The applicant indicates that he wishes to name the bus driver as a personal respondent to the Application; however, without the bus driver’s full name he is unable to do so.
4The respondent filed a Response on November 8, 2012 denying the allegations of discrimination and harassment. The respondent also filed a response opposing the RFOP. The respondent indicates that the bus driver should not be added as a personal respondent because, as the organizational respondent, it is fully able to respond to the allegations and accepts vicarious liability for the alleged actions of the bus driver.
Decision
5Pursuant to Rule 1.7(p) of the Tribunal’s Rules of Procedure (“Rules”), in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party to produce any document or information.
6The standard for disclosure of documents or information in a human rights proceeding is “arguable relevance”. The requesting party must demonstrate a nexus between the sought-after information and the subject-matter of the application. The Tribunal in McKay v. Toronto Police Service Board, 2009 HRTO 1220, explained the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:
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 defense. 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.
7In these circumstances, I find that it is appropriate to require the respondent to disclose the full name of the bus driver.
8The respondent does not dispute arguable relevance. There is little doubt that the identity of the individual who allegedly engaged in the impugned behaviour that is the focus of the applicant’s allegations is pertinent information that the Tribunal will need for the purposes of assessing the parties’ respective claims. While the respondent highlights the issue of vicarious liability, the matter of who is ultimately responsible is distinct from the question of disclosure and does not negate the significance of the information to the case. The respondent has not addressed any points of confidentiality or privilege, nor am I able to discern any such concerns from the materials filed.
9Given the fact that the applicant’s allegations expressly fault the conduct and comments of the bus driver, I find the identity of the bus driver is relevant to the issues raised in the Application, as well as a necessary detail required for the purposes of the applicant’s proposed intention to add the individual as a personal respondent.
10Accordingly, within 7 days of the date of this Interim Decision, the respondent is directed to provide to the applicant, copied to the Tribunal, written information of the identity of the bus driver. In order to facilitate the Tribunal’s process, if the respondent is aware of and is able to do so, the respondent is also directed to provide the contact information of the bus driver’s representative.
11I am not seized of this matter.
Dated at Toronto, this 11th day of June, 2013.
“signed by”
____________________________________
Ena Chadha
Vice-chair