Robert Bowden v. Jackson Trademark Services Inc., 2013 HRTO 2020

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Bowden Applicant

-and-

Jackson Trademark Services Inc. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: December 5, 2013 Citation: 2013 HRTO 2020 Indexed as: Bowden v. Jackson Trademark Services Inc.

WRITTEN SUBMISSIONS

Robert John David Bowden, Applicant Karen Bowden, Representative

Jackson Trademark Services Inc., Respondent Ronald Minken, Counsel

Introduction

1This Interim Decision addresses the applicant’s Requests for an Order During Proceedings (“RFOP”). By RFOP dated October 16, 2013, the applicant requested to add a ground of discrimination to his Application and to amend the remedy sought. The applicant also sought production of certain documents from the respondent.

2In his Application, the applicant alleged that the respondent discriminated against him because of family status and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant alleged that the respondent discriminated against him when it suspended him for three months after he took time off for family-related reasons due to his wife’s short-term disability.

Request to Amend Application

3Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

4The applicant sought to amend his application to add marital status as a ground of discrimination.

5The respondent objected to this request arguing that the Application does not contain any allegation that the respondent discriminated against the applicant because of marital status as that term is defined in the Code. It also submitted that the applicant’s request to add the ground of marital status was not made in a timely manner. Finally, the respondent submitted that the granting of the amendment would unfairly delay these proceedings.

6The applicant’s request is granted. The addition of the ground of marital status does not raise new facts distinct from the original narrative contained in the Application. It is simply an alternative characterization of the discrimination alleged in the Application. As such, the addition of this ground will not delay these proceedings.

7The amendment is made without any determination by the Tribunal as to the merits of the allegations and without prejudice to any position the respondent may wish to take regarding these allegations.

Amended Remedy

8The applicant requested to increase the general damages sought as a remedy. He also sought to request special damages for lost wages.

9The respondent objected to the applicant’s request to amend the general damages sought in his Application. It did not object to the applicant’s request for special damages. However, it requested production of all relevant documentation relating to these damages including documentation showing any amounts received during the applicant’s period of unemployment as well as documents to support his efforts to mitigate his damages.

10The applicant’s requests to amend his claims for general and special damages are granted. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.

11This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

12Having granted the applicant’s request to seek special damages for lost wages, I find it appropriate to order the applicant to produce all relevant documentation relating to his claim for lost wages. This includes all materials relating to the duration of his period of unemployment, any monies received during this period of unemployment, and his efforts to mitigate his damages by seeking alternative employment.

Applicant’s Production Request

13The applicant sought production of the following:

a. The content of text message correspondence between the applicant and the respondent during the period between June 1, 2012 and September 24, 2012 between cellular numbers [REDACTED] and [REDACTED].

b. All invoices and work orders for the period of January 1, 2012 to April 30, 2013.

14It is well-established that a party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding. See McKay v. Toronto Police Service Board, 2009 HRTO 1220.

Text Messages

15The applicant submitted that the content of the text messages is necessary to show that the applicant communicated with the respondent regarding the reason for his absences from work. The respondent did not dispute that the text messages are arguably relevant to the issues in this Application. However, the respondent claimed that it no longer has copies of these text messages as they have been deleted. When the respondent requested copies of the messages from Bell Canada, it was advised by a law clerk in Bell Canada’s law department that Bell Mobility Inc. does not “retain the content (in any form) of SMS text messages once sent and received.”

16The applicant disputed the information in the law clerk’s letter. His representative claimed that all telecommunications companies keep copies of text messages on their servers for a seven-year period. The applicant also claimed that the proper procedure for obtaining the text messages was through a police search warrant. The respondent contacted various police forces but was advised that the police could not assist them as the matter was not the subject of a criminal investigation.

17The applicant’s request for production of copies of the text messages from the respondent is denied as the respondent no longer has copies of these messages in its possession.

18In light of the letter from Bell Canada’s legal department, it appears that Bell Canada does not retain the content of any SMS text messages once sent and received. If the applicant disputes the information obtained from Bell Canada, or if he believes that Bell Canada can retrieve copies of text messages from its servers, the appropriate procedure for him to follow is to deliver a third party RFOP to Bell Canada. The Tribunal will provide further directions to the parties in regards to this third party RFOP in a separate Case Assessment Direction.

Invoices and Work Orders

19The applicant’s request for the production of invoices and work orders for the period of January 1, 2012 to April 30, 2013 is denied.

20The applicant submitted that the invoices and work orders would show that the applicant’s absences while supporting his sick wife and family did not cause undue hardship to the respondent. The respondent objected to this request on the basis that its only claim of financial hardship caused by the applicant’s absences was for the period from May and June 2012. The respondent submitted that it has disclosed all relevant information relating to the financial hardship it suffered during these two months.

21Based on the respondent’s submissions, the only period of time during which it will seek to rely upon a defence of undue hardship is the period from May to June 2012. As a result, the only invoices and work orders that are arguably relevant in this case are those for this time period. The invoices and work orders for any other time period are not arguably relevant, as the respondent is not taking the position that it suffered undue hardship as a result of any of the applicant’s absences outside the May-June 2012 time period. If the respondent’s submissions relating to undue hardship should change, the respondent must make timely production to the applicant of all invoices and work orders for the period during which the respondent is claiming undue hardship.

Order

22For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application to add marital status as a ground of discrimination is granted.

b. The applicant’s requests to amend the general damages and special damages sought in the Application are granted.

c. The applicant shall produce all relevant documentation relating to his claim for lost wages. This includes all materials relating to the duration of his period of unemployment, any monies received during this period of unemployment, and his efforts to mitigate his damages by seeking alternative employment.

d. The applicant’s request for the production of text messages from the respondent is denied. The Tribunal will provide further directions to the parties by Case Assessment Direction in regards to the third party RFOP that must be delivered to Bell Canada to seek copies of the text messages if they exist or can be retrieved.

e. The applicant’s request for production of all invoices and work orders for the period of January 1, 2012 to April 30, 2013 is denied. The respondent is ordered to produce all invoices and work orders for the May-June 2012 if it has not already done so. If the respondent’s submissions relating to undue hardship should change, the respondent shall make timely production to the applicant of all invoices and work orders for the period during which the respondent is claiming undue hardship.