Prothero v. Ontario (Community Safety and Correctional Services), 2014 HRTO 1454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Prothero

Applicant

-and-

Her Majesty the Queen as represented by the Minister of Community Safety and Correctional Services o/a the Ontario Provincial Police, Fred Bertucca, Laura Young and Ted Clark

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 29, 2014

Citation: 2014 HRTO 1454

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

INTRODUCTION

1This is an Application filed under section 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.

2In advance of the date on which the hearing on the merits was scheduled to begin, the parties filed a number of requests for order. Among the issues in dispute was a request by the respondents for production of a transcript of the examination for discovery of Troy Fernandez, an employee of the Great West Life-Assurance Company ("GWL"), from a civil action between the applicant in this forum and GWL.

3For the reasons that follow, GWL is directed to provide a copy of the transcript of the examination for discovery of Troy Fernandez from the civil action between the applicant and GWL to counsel for the respondents within 4 days of the date of this Interim Decision.

DECISION

Background

4The respondents took the position that the transcript is arguably relevant and ought to be provided to them by the applicant. The respondents also indicated that once a ruling has been made by the Tribunal as to whether the document is arguably relevant, they intend to proceed to file a motion in Superior Court to obtain access to the transcript in question.

5The applicant took the position that the document in question is not arguably relevant and, in the alternative, if it is found to be arguably relevant, the applicant is bound by the deemed undertaking rule and cannot disclose the document in question. The applicant also argued that GWL should be provided with notice in order that it could make submissions on this production issue.

6Counsel for the respondents provided counsel GWL with notice that they were seeking disclosure and production of some documents produced during the course of the civil action. A copy of a CAD issued by this Tribunal, dated July 2, 2014, indicating that outstanding procedural rulings would be dealt with on July 7, 2014, was also sent to GWL. As GWL had not been provided formal notice by the Tribunal of the conference call held on July 16, 2014, consideration of issues impacting on its interests was postponed and addressed in the conference call held on August 5, 2014, in advance of which copies of the Case Assessment Directions and the notice of conference call was sent to counsel for GWL.

7In addition to the respondents' request as outlined in paragraph 3 (above), the parties, and GWL, were directed to be prepared to address the applicability of s.43(3)(d) of the Code and Rule 1.7(p) and (q) of the Tribunal's Rules of Procedure to the issue at hand and to be prepared to make submissions on the question of whether the Tribunal could order GWL to produce the transcript in question, if it is found to meet the test of arguable relevance.

8During the teleconference held on August 5, 2014, the parties provided submissions that expanded on the positions outlined in their prior written submissions. The respondents argued that the document is arguably relevant, particularly as it relates to key conversations between Mr. Fernandez and respondent Young, that an assessment of credibility will be necessary if their accounts diverge and the existence of a prior sworn statement is relevant to that inquiry.

9The respondents rely on Gibbs v. Kawartha Pine Ridge District School Board, 2010 HRTO 56, in which the applicant was directed to produce, on the basis of arguable relevance, the following:

all documents relating to the applicant's application for long term disability benefits and the subsequent litigation, including any and all supporting documents which were part of the application, medical or otherwise; any reply correspondence from Sun Life; the statement of claim, the statement of defence and any other pleading; copies of the documents disclosed or received during the course of the litigation; any transcripts from the examination for discovery and any settlement documents.

10The applicant reiterated its position that the transcript is not arguably relevant because the legal issues in the two proceedings are fundamentally different, while acknowledging that there is some factual overlap.

11GWL argued that it is not a party to these proceedings and neither is Mr. Fernandez. It pointed out that most of the documents relating to the civil proceeding have already been provided, argued that the issue in the civil proceeding is different from the one before this Tribunal and that it would be unfair if Mr. Fernandez were to be subjected to cross examination on the basis of the transcript in question.

12GWL submitted that the Tribunal's ruling in Henry v. Faurecia Automotive Seating Canada Ltd., 2008 HRTO 30, is more on point. The Tribunal in Henry held as follows:

After considering the issues in dispute, the nature of the documents sought and the materials before me at this point in time, I find that the documents requested by the respondents are not arguably relevant to deciding whether the respondents met their obligations under the Code. The documents in question involve the insurance litigation. The issue in dispute in that proceeding was entitlement to LTD benefits. The determination of LTD entitlement is irrelevant to the question of whether the respondents considered or took steps to accommodate the complainant.

While the terms of the settlement in the insurance litigation would be relevant to the determination of an award for special damages I note that the complainant is not seeking special damages.

While the complainant's application for LTD benefits where he makes various representations about his ability and disability to work may also be arguably relevant, that document is already in the hands of the respondents.

13The test for ordering production is summarized in Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at paragraphs 8:

The threshold for production and disclosure of documents before the Tribunal is "arguable relevance" – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

14As the Tribunal has held on numerous occasions, at 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.

15In my view, in the present case, while the legal issues in the two proceedings are different, there is overlap in the underlying events that gave rise to both matters and the transcript in question meets the test for arguable relevance as it concerns, in part, communications concerning the applicant between representatives of GWL and respondent Young during the material time in the present Application before this Tribunal.

16Section 43(3)(d) of the Code reads as follows:

Without limiting the generality of subsection (1), the Tribunal rules may,

(f) authorize the Tribunal to require a party to a proceeding or another person to,

(i) produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form,

(ii) provide a statement or oral or affidavit evidence, or

(iii) in the case of a party to the proceeding, adduce evidence or produce witnesses who are reasonably within the party's control; and

17Rule 1.7(p) and (q) read as follows:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form;

(q) on the request of a party, require another party or other person to provide a report, statement, or oral or affidavit evidence;

18Pursuant to s.43(3)(d) of the Code and Rule 1.7 of the Tribunal's Rules of Procedure, GWL is directed to provide a copy of the transcript of the examination for discovery of Troy Fernandez, an employee of the Great West Life-Assurance Company ("GWL"), from a civil action between the applicant in this forum and GWL to the parties to this Application within 4 days of the date of this Interim Decision.