HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Patrick Allen
Applicant
-and-
The Ottawa Hospital
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Allen v. The Ottawa Hospital
WRITTEN SUBMISSIONS
Patrick Allen, Applicant
Self-represented
1This is an Application filed 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 disability. The Application will be heard on January 29, 2014.
2On December 3, 2013 a case management teleconference was held to address issues arising from Interim Decision 2013 HRTO 1862 and a Case Assessment Direction dated November 22, 2013, as well as to address a request by the applicant for production of arguably relevant documents. During the teleconference I ruled that the documents are arguably relevant and need to be produced to the applicant.
3The respondent has indicated that it has located all existing arguably relevant documents and is prepared to disclose these to the applicant, with the exception of certain emails over which it asserts solicitor-client and litigation privilege. The applicant requests that the Tribunal review these documents to determine whether the asserted privileges apply.
4A useful analysis of this issue is set out in Gorgani v. Sybase Canada, 2011 HRTO 415. As Rule 16.1 of the Tribunal’s Rules of Procedure and the analysis in the decision make clear, it is not sufficient for the respondent to simply invoke a privilege as a reason not to disclose arguably relevant documents without supplying a justification.
5In order to determine whether the privileges in this case are validly asserted, the respondent is directed to provide to the applicant and the Tribunal the following information:
the number of documents over which privilege is claimed;
the nature of the privilege or privileges claimed and the number of documents that fall within the categories of privilege claimed;
the nature of the relationship between the sender and receiver of the documents;
the number of documents over which privilege is claimed that pre-date the filing of the Application;
the number of documents over which privilege is claimed that post-date the filing of the Application.
6Depending upon the volume of documents in question, the respondent need not necessarily provide a list of each document. It may be appropriate to bundle this information based on, for example, the nature of the sender or recipient, when the document was created, or the type of privilege claimed.
7If, upon receiving this information, the applicant still takes issue with the assertion of privilege by the respondent, then he can make a request in accordance with the Tribunal’s Rules that sets out why he thinks the Tribunal should review the documents. The Tribunal will then determine whether or not to grant that request.
order
8In relation to the arguably relevant documents over which privilege is not asserted, the respondent will provide these to the applicant as soon as possible and not later than 5 days from the date of this Interim Decision.
9In relation to the arguably relevant documents over which privilege is asserted, within 5 days of the date of this Interim Decision the respondent will provide to the applicant and the Tribunal the information set out in paragraph 5 above.
10The date for disclosure to the other party and the Tribunal of the witness lists, witness statements and documents the parties intend to introduce at the hearing is moved from December 13, 2013 to December 31, 2013.
Dated at Toronto, this 18th day of December, 2013.
“Signed by”
Paul Aterman
Vice-chair