Carroll Robinson v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Glenn Murray, 2013 HRTO 1744

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carroll Robinson

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Glenn Murray

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: October 16, 2013

Citation: 2013 HRTO 1744

Indexed as: Robinson v. Ontario (Community Safety and Correctional Services)

APPEARANCES

Carroll Robinson, Applicant

Ian Johnstone, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Glenn Murray, Respondents

Omar Shahab, Counsel

background

1This Interim Decision deals with a request by the applicant for production of arguably relevant documents in anticipation of a hearing of this Application scheduled to begin on December 9, 2013.

2The applicant is a former employee of the Ontario Public Service who self-identifies as African-Canadian. On December 19, 2011 he filed an Application 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 race, colour and age, as well as alleging reprisal.

3Earlier, in 2007, the applicant had filed two complaints with the Ontario Human Rights Commission, naming the corporate respondent and three individuals as respondents. The parties reached a settlement of those complaints on February 4, 2008. A key term, but not the only term, of the settlement was that the applicant would be appointed to a permanent Director-level position within a year of the settlement.

4The respondents requested to have the current Application dismissed on various grounds, including delay and on the ground that it raised allegations that were already settled by the agreement of February 4, 2008. In Interim Decision, 2013 HRTO 287, I determined that certain allegations could proceed, while others were dismissed.

5The allegations that the respondents delayed in appointing the applicant to a position in accordance with the terms of settlement were dismissed because the terms were complied with. The allegations that the respondents failed to comply with the public interest remedies in the settlement were dismissed because the applicant offered no particulars to support these allegations. The allegations that were allowed to proceed are that the respondents either discriminated against the applicant or enacted reprisals against him, or both, by restructuring the division to which he was appointed, by under resourcing the branch he was in charge of and, finally, by terminating his employment.

the request for production

6The applicant’s theory is that the respondents never really had the intention to live up to the terms of the settlement and that, while his appointment as a Director in the Organisational Effectiveness Division (OED) of the corporate respondent initially gave the appearance of being a permanent position, this disguised the respondents’ ultimate intent to terminate his employment. In support of that theory the applicant has requested production of the following documents:

1. Report by Heather Duff (Executive Coach), commissioned in 2008 by Ministry Chief Administrative Officer (CAO) Allan Gunn regarding the Applicant’s career options;

2. All internal records prepared by the Ministry in the years 2008 and 2009 that discuss the identification process of a Director position for the Applicant (including, but not limited to: i) all e-mail correspondence and ii) all internal memorandums;

3. All records regarding Personal Respondent Glenn Murray’s implementation of the February 2009 settlement agreement in the years 2008 and 2009;

4. Listing of all competitions for Ministry-Director level positions (excluding OPP positions) from February 2009 to present, identifying the racialized human resources person or person from OED who was a member of the selection panel;

5. Reports on the audits of all Ministry selection panels for SMG-2 positions and higher (excluding OPP positions) from February 2009 to date regarding compliance with: i) the Ontario Human Rights Code, ii) the Ontario Human Rights Commission’s policies and guidelines, iii) the OPS’ policies and guidelines pertaining to staffing, recruitment and retention and iv) the Ministry’s Equal Opportunity Policy;

6. All records pertaining to the views expressed by Assistant Deputy Minister Steve Small throughout the years 2010 and 2011 regarding the future of the Recruitment Modernization Branch (RMB) and, further, its personnel in light of the proposed disbanding of OED;

7. All records prepared after November 2011 relating to the arrangements proposed/ made by the Ministry for recruitment of Correctional Officers, (including, but limited to: i) the recruitment of Correctional Officers for the Toronto South Detention Centre and ii) the role of the Operational Support Division and of personnel within this division);

8. Records that indicate whether Anthony Streppel, a member of the Applicant’s RMB at the time of its disbanding, was in fact transferred to HR Ontario “effective March 31, 2012”, as indicated in the November 17, 2011 letter to Streppel from ADM Steve Small that was disclosed by the Respondents;

9. Records pertaining to lump-sum payments made in 2012 to Senior Management Group (SMG) employees at the top of their ranges who met all performance targets in fiscal 2011/2012 (to ensure that their T4 incomes were not lower than in the previous year); and

10. Documents referencing the number of Management Compensation Option (MCO) days which the Applicant was entitled to at the time he received the surplus notice in November 2011.

7The respondents contest the arguable relevance of items 1-5 on the grounds that these documents speak to allegations which the Tribunal dismissed in its earlier Interim Decision. They maintain that items 7-9 are not arguably relevant because these requests are framed too broadly and constitute a fishing expedition. They do not contest the arguable relevance of items 6, 10.

8In relation to items 1-5, the applicant’s position is that he is not trying to re-litigate the allegations that were dismissed in the earlier Interim Decision. Rather, he seeks these documents for a different purpose, that of establishing his theory that the respondents’ post-settlement actions towards him were tainted with discrimination and an intent to enact a reprisal against him for having brought his 2007 complaints. He maintains that there is an unbroken course of discriminatory conduct towards him which culminates in his termination, and that documents which pre-date his appointment as a Director may show this.

9Regarding items 7-8, he maintains that he was told that the reason for disbanding the OED (which ultimately led to his position being declared surplus) is that the corporate respondent was getting out of the business of recruitment and transferring that function to another Ministry. He maintains that these records may contradict what he was told. In relation to item 9, he contends that these records may show that he was not paid performance pay when similarly situated colleagues were, and that this may be evidence of discrimination or reprisal.

decision

10The issue on this request is the arguable relevance of these documents. The threshold of arguable relevance is quite low. As indicated in McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paragraphs 12-13, the party seeking production simply must demonstrate a nexus between the information or document sought and the facts or issues in dispute.

11In relation to items 1-3 the threshold is met because these documents may shed light on facts that are in issue, namely the view the respondents are alleged to have held of the applicant, including whether they held any animus towards him for having made the 2007 complaints.

12In relation to items 4 - 5 the nexus is less obvious, but still sufficient to meet the threshold of arguable relevance. If there is evidence in these documents that the respondents did not live up to the terms of the settlement, this may lead to an inference about the respondents’ alleged attitude toward the applicant, which is, as noted above, a fact in issue.

13In relation to these five items it is important to underscore two points. One is that an order for the production of these documents should not be seen as an opportunity to advance allegations that the Tribunal has already dismissed. The second is that while these documents may meet the test of arguable relevance, it does not follow from this that they meet the test of actual relevance, a matter to be decided after the parties produce the documents they intend to introduce into evidence.

14Items 7- 8 meet the test of arguable relevance because they may speak to the question of what the applicant alleges he was told about why the OED was disbanded and why his position was made surplus. Item 9 is arguably relevant because it may shed light on a fact in issue, namely the applicant’s allegation that he was treated differently and worse than similarly situated colleagues.

order

15The applicant’s request for production of items 1-5 and 7-9 is granted. The respondents are to provide the applicant with these documents as soon as possible and not later than October 25, 2013.

16The consequence of setting the above deadline is that the deadline for parties to provide their hearing disclosure will have to be moved. The parties will provide each other and the Tribunal with their witness lists, witness statements and the documents they intend to introduce at the hearing by November 12, 2013.