Moor v. International Brotherhood of Electrical Workers, 2013 HRTO 518

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Justin Moor

Applicant

-and-

International Brotherhood of Electrical Workers, Local 636 and The Corporation of the City of Brantford

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 26, 2013 Citation: 2013 HRTO 518 Indexed as: Moor v. International Brotherhood of Electrical Workers

APPEARANCES

Justin Moor, Applicant Wade Poziomka, Counsel

International Brother of Electrical Workers, Local 636, Respondent Craig Flood, Counsel

The Corporation of the City of Brantford, Respondent Heidi de Vries, 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 and contracts because of disability and marital status. This Interim Decision addresses a Request for an Order During Proceeding (the “Request”) filed on March 4, 2013, seeking particulars and disclosure of documents.

BACKGROUND

2In the Application, the applicant, who describes himself as being deaf, states that the respondent Corporation of the City of Brantford (the “City”) hired him in the position of Business Maintenance Technician in the Water Department in September 2008. His father in law, Chuck Boyd, was the Water Superintendent for the City at the time, but this apparently posed no issue, as Mr. Boyd would not be the applicant’s immediate supervisor. The position held by the applicant came within a bargaining unit represented by the respondent International Brotherhood of Electrical Workers, Local 636 (the “Union”). The applicant alleges that in or around June 2010 the respondents negotiated a collective agreement that targeted him by changing the job classification of his position, which he alleges decreased his wages, because his father-in-law was the Water Superintendent and because of his disability. The applicant alleges that he was the only member of the bargaining unit who suffered a decrease in pay. The applicant states that he requested clarification both from Union representatives and City managers, but did not receive a satisfactory explanation. The applicant states that he filed a grievance that proceeded to the second step of the grievance process, but was withdrawn by the Union. The respondents deny that they targeted the applicant in collective bargaining and deny that they in any way treated him improperly when he sought clarification regarding the new collective agreement.

THE REQUEST

3The Union seeks an order directing the applicant to provide the following:

• Particulars regarding the allegation of discrimination because of marital status;
• Production of complete and unedited recordings and transcripts of conversations in the applicant’s possession, custody or control that are arguably relevant to these proceeding, including recordings the applicant made of the ratification meeting on or about July 20, 2010, the meeting with Roland Bouttete on September 13, 2010 and the Step 2 Grievance Meeting on or about November 13, 2010;
• Any and all medical documentation upon which the applicant intends to rely and/or is arguably relevant, including clinical notes and/or reports; and,
• A complete copy of the applicant’s file.

4The Union submitted that the applicant provided no further particulars regarding the allegation of discrimination because of marital status. The Union submitted that this lack of particulars leave the Union without an awareness of the case against it and unfairly prejudices its ability to answer the allegation. The Union noted that the applicant provided informal transcripts of his recordings made on July 22, 2010 and September 13, 2010, but not of the meeting on November 13, 2010. In any event, the Union submitted that the applicant should produce the unedited recordings regarding all three dates and/or a complete and unedited transcript of that recording. The Union noted that the applicant stated in the Application that he will be able to provide medical documentation regarding the effect the alleged discrimination had upon him and noted that he received a complete copy of his employment file from the City. The Union submitted, however, that the applicant has not produced any of these documents.

5The Union seeks an order directing the City to produce the following:

• Any and all documents, policy handbooks, memoranda, correspondence or emails relating to any policy or practice for performing job evaluations for employees; and,
• A complete copy of the applicant’s employee or personnel file, to the extent that it is not produced by the applicant.

6The Union submitted that the applicant’s performance of his job duties and the review of the applicant’s performance by the City are at issue in this proceeding; therefore, the manner in which the City performs performance reviews is relevant. Again, the Union submitted that the applicant stated that he received a complete copy of his employment file from the City, but the Union has not received a copy of this file.

7The applicant filed a Response to a Request for an Order on March 18, 2013. The applicant submitted that particulars regarding his allegations of discrimination because of marital status are contained in the witness statements filed and delivered pursuant to Rule 17 of the Tribunal’s Rules of Procedure. The applicant submitted that it has now produced the medical reports he intends to rely upon and has done so in time to prevent any prejudice to the respondents. Similarly, the applicant submitted that he has now produced complete and unedited recordings of conversations with the applicant that are in the applicant’s possession and are arguably relevant to this proceeding. Accordingly, the applicant submits that no order is required regarding the recordings. The applicant submitted that he obtained limited documentation from his employment file, all of which has been produced.

8The City also filed a Response to a Request for an Order on March 18, 2013. The City submitted that information regarding the manner in which the City conducts performance evaluations is irrelevant to the issues before the Tribunal in this Application. In that regard, the City submitted that the reclassification of the applicant’s position was not based on his job performance and the City did not evaluate the applicant’s performance, or that of any other employee, before the Building Maintenance position was reclassified. The City therefore submitted that the documents relating to performance management that the Union requested are not relevant to the issue of whether the respondents discriminated against the applicant in negotiating the collective agreement.

9The City submitted that it has no knowledge of which documents, if any, the applicant obtained from his employment file. The City further submitted that it produced the documents from the applicant’s employment file that are relevant to the issues at hand, as follows:

• Staffing Requisition for Building Maintenance position
• Application and resume from the applicant
• Hire letter
• Hire form
• New hire probationary recommendation
• Memo to applicant re: Completion of Probationary Period.

The City therefore submitted that the Tribunal should dismiss the Request as against the City.

DECISION

10The Union’s Request was filed on the same day, March 4, 2013, as the applicant filed and delivered his witness list, witness statements and document brief, as required under Rules 16 and 17 of the Tribunal’s rules, and indeed the Tribunal received both sets of documents within a few minutes of each other. Accordingly, it seems likely that the Union had not had the opportunity to review the applicant’s materials before filing the Request. As the Tribunal noted in C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, witness statements must describe the parties’ expected evidence is sufficient detail to ensure, among other things, each party fully understands the other side’s case. I am satisfied that the applicant’s witness statements provide sufficient particulars for the respondents to understand the applicant’s case and to prepare to meet it.

11At the pre-hearing stage, 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.

12The recordings made by the applicant as well as the medical information regarding the effect the respondents’ alleged discrimination had on him are certainly arguably relevant to this proceeding. The applicant, however, has disclosed these materials; therefore, it is not necessary to order their production.

13The applicant alleges the respondents discriminated against him by negotiating a term in their collective agreement designed to have a negative effect on the applicant and in their respective dealings with him when he sought clarification and redress. There is no allegation that the respondents based their agreement regarding the reclassification of the applicant’s position on any evaluation of the applicant’s performance. Consequently, the manner in which the City conducts performance evaluations has no arguable relevance to any issue in this proceeding.

14Similarly, the Union has not indicated why the contents of the applicant’s employment file have any connection to the respondents’ collective bargaining in 2010 or the applicant’s attempt to seek clarification and redress regarding the reclassification of his position. The Union simply submitted that the applicant stated that he received a copy of his file, which does not in my view render it arguably relevant. The applicant and City have also disclosed the documents for the applicant’s employment file that they consider arguably relevant.

ORDER

15For the foregoing reasons the Union’s Request is denied.