Ronald Ihasz v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue, 2013 HRTO 2112

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Ihasz

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Revenue

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: December 20, 2013

Citation: 2013 HRTO 2112

Indexed as: Ihasz v. Ontario (Revenue)

APPEARANCES

Ronald Ihasz, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented, Respondent

Paul Meier, Counsel

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 and reprisal or threat of reprisal. This Interim Decision addresses a Request for an Order During Proceedings filed by the applicant (the “request”) and the respondent’s request that the Tribunal schedule the matter for hearing.

background

2The applicant worked for the respondent as a Tax Administration Manager (“TAM”). The respondent identified the applicant as one of its employees to be transferred to the Canada Revenue Agency (“CRA”) as part of the Harmonized Sales Tax initiative. The transfer process was delayed because the applicant went on a disability leave and ultimately not completed because the applicant did not meet the CRA’s criteria for employment.

3In the Application, the applicant states that the respondent informed him that his claim for long term disability benefits had been denied on January 20, 2012. As a result, the applicant decided to return to work. The applicant alleges that the respondent by designated him as surplus, on January 26, 2012, instead of accommodating by him placing him in a TAM position, as he requested.

4In Ihasz v. Ontario (Revenue), 2012 HRTO 764, the most recent Interim Decision in this matter, dated May 10, 2013, the Tribunal summarized the procedural history of this matter to that point as follows, at paragraph 2:

The hearing of this matter was scheduled to be heard on January 14, 15 and 16, 2013, in Toronto. The parties spent January 14, 2013 in an unsuccessful attempt to resolve the matter through mediation/adjudication. The January 15 and 16, 2013 hearing dates were adjourned because the applicant’s health prevented him from attending. In Ihasz v. Ontario (Revenue), 2013 HRTO 333, an earlier Interim Decision in this matter, I dismissed the applicant’s requests that I recuse myself because of an alleged reasonable apprehension of bias and for the Tribunal allow him to re-open a related application that he withdrew. In that Interim Decision, I also directed the parties to communicate with each other and provide the Tribunal with dates on which they are both available on three consecutive days to continue the hearing of this matter. The parties, however, have been unable to agree upon dates and the applicant has requested accommodation regarding the duration, location and format of the hearing. This Interim Decision addresses these scheduling issues.

In Ihasz v. Ontario (Revenue), 2012 HRTO 764, the Tribunal denied the applicant’s request for accommodation and directed that the Tribunal would schedule the matter for a two-day hearing in Toronto. As the parties are obviously aware, the Tribunal did not schedule further hearing dates in this matter, which appears to have been the result of an administrative oversight.

The Applicant’s Request

5The applicant filed the Request on November 19, 2013 and the responded filed a Response to a Request for an Order on December 3, 2013. The applicant requests an order requiring the respondent to produce 2,001 e-mail messages from 2009 to present with his name on them. The applicant made the same request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) and was advised that the search applying these criteria located e-mail messages totalling 3,649 pages. Access to some of the messages was denied under sections 17(2) and 65(6) of FIPPA because they related to tax information and labour relations or employment matters. Access was granted to 1,498 of the pages. The applicant submitted that he is confident that a large number of the e-mails to which he was not granted access are relevant to the issues in dispute in this Application and another application 2011-10019-I, which he withdrew.

6In response, the respondent submitted that it disclosed all of the arguably relevant documents regarding this Application and the withdrawn application in June and November 2012. The respondent submitted that the Application is based on incidents alleged to have occurred in January and February 2012. Accordingly, the respondent submitted that the applicant’s request is extremely broad and has no nexus to the issues in dispute, which arose in January and February 2012. The respondent submits that the applicant’s request amounts to a fishing expedition and the fact that there are many pages with the applicant’s name on them in e-mail messages from 2009 to 2012 is irrelevant.

Analysis and Decision

7As noted in Ihasz v. Ontario (Revenue) 2012 HRTO 2043 and Ihasz v. Ontario (Revenue) 2012 HRTO 2275, previous Interim Decisions in this matter dealing with production requests, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. A finding that a document is arguably relevant does not imply that the document will actually found to be relevant or admissible at a hearing.

8The applicant has provided no basis for concluding that the documents he requested are arguably relevant. First, the scope of the request is indeed very broad and is well beyond the timeframe encompassed by the Application, i.e., the first few months of 2012. Second, the applicant’s bare assertion that he is confident that many of the documents request are relevant to this Application and his withdrawn application, i.e., 2011-10019-I, is not sufficient to establish that the documents may prove or disprove facts in issue in this dispute. Third, the applicant withdrew application 2011-10019-I and reconsideration of the Tribunal’s decision to grant the applicant’s Request to Withdraw was refused. See Ihasz v. Ontario (Revenue) 2013 HRTO 333. Consequently, there are no live issues regarding the withdrawn application and whether some of the documents the applicant requested are arguably relevant to that application – which has not been established in any event – is entirely immaterial.

Hearing to be Scheduled

9As noted above, the Tribunal denied the applicant’s request for accommodation regarding the duration, location and format of the hearing and ordered that a two-day hearing be scheduled. See Ihasz v. Ontario (Revenue), 2012 HRTO 764. The Tribunal did not schedule the hearing and the respondent requests that it do so, pursuant to its previous direction. The responded submitted that the applicant indicated in correspondence to the Tribunal and respondent that he hoped to receive medical clearance in 2014 to attend a hearing. The respondent submitted that it has received no medical information that would indicate that the applicant is unable to attend a hearing.

10In Ihasz v. Ontario (Revenue), 2012 HRTO 764, the Tribunal found that the medical information provided by the applicant did not support his request to limit the duration of the hearing, to conduct the hearing by telephone and/or to change the venue of the hearing from Toronto to St. Catharines. Since that Interim Decision, the applicant has provided no further medical information indicating that he is unable to attend and participate in a hearing in Toronto. The Tribunal shall therefore schedule a two-day hearing in Toronto.

11The Tribunal is cognizant of the applicant’s disability and does not wish to deny an accommodation, if required, but requires sufficient information to grant any accommodation request. Accordingly, should the applicant require accommodation regarding the scheduling of the hearing the Tribunal requires an explanation of why the applicant’s disability requires any accommodation he may request. The Tribunal does not generally require that medical reports in support of a party’s request for accommodation before this Tribunal be disclosed to the other parties. Rather, the Tribunal would advise the respondent of the substance of any such documentation and would afford it with an opportunity to make submissions in response.

ORDER

12The applicant’s Request is denied.

13By no later than January 3, 2014, the parties shall advise the Tribunal of the dates on which they are unavailable in March and April 2014 to attend the hearing of this matter. Should the parties not respond as directed, the Tribunal will schedule the hearing unilaterally.