Robert Bowden v. Jackson Trademark Services Inc., 2014 HRTO 26

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: January 8, 2014

Citation: 2014 HRTO 26

Indexed as: Bowden v. Jackson Trademark Services Inc.

WRITTEN SUBMISSIONS

Robert John David Bowden, Applicant

Karen Bowden, Representative

Jackson Trademark Services Inc., Respondent

Kyle D. Burgis, Counsel

Introduction

1This Interim Decision addresses the applicant’s third party production request. It also provides directions for the hearing of this matter.

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.

Applicant’s Production Request

3By Request For Order During Proceedings (“RFOP”) dated October 16, 2013, the applicant requested the production of copies of the content of text message correspondence between cellular numbers [redacted] and [redacted] during the period between June 1, 2012 and September 24, 2012.

4By Case Assessment Direction dated December 5, 2013, I directed Bell Canada to produce the copies of the text messages sought by the applicant. By letter dated December 13, 2013, senior counsel from Bell Canada advised that Bell cannot comply with the applicant’s production request as it does not retain the content of text/SMS messages once sent and received.

5By e-mail dated December 15, 2013, the applicant sought production of the full activity records (dates, times of calls and texts made between cellular numbers [redacted] and [redacted] during the period between May 1, 2012 and September 24, 2012. The respondent has disclosed some of these records to the applicant, but advised that it no longer has a complete set of activity records for the relevant time period in its possession.

6By letter dated December 16, 2013, Bell Canada’s counsel advised the applicant that Bell Canada would require an order from the Tribunal to produce the requested call detail records (“CDRs”) as well as a direction with respect to the costs of obtaining this documentation. In her letter, Bell Canada’s counsel noted that Bell Canada would incur $250 in costs in order to retrieve the documentation requested by the applicant. She also noted that the retrieval of such data typically requires a minimum of 60 days’ notice.

7Due to time constraints in this case, I agreed to treat the applicant’s December 15, 2013 e-mail as a formal third party RFOP. By CAD dated December 18, 2013, I directed the parties to make submissions in regards to the applicant’s RFOP. I also directed the parties to make submissions as to whether the February 10-11 hearing dates should be adjourned if I did grant the applicant’s production request.

Applicant’s production request

Arguable Relevance of the CDRs

8It is well-established that a party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding. In addition, if the requested information triggers concerns regarding privacy or privilege, the applicant must satisfy the Tribunal that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220 (“McKay”).

9The applicant submitted that the requested CDRs are arguably relevant. He submitted that they will assist in creating a timeline of events that will support his claim that he kept in regular contact with his employer throughout the period during which he was allegedly required to stay home to attend to his family’s needs.

10The respondent submitted that the CDRs are not arguably relevant since it claimed that there is no dispute that text messages were exchanged between the respondent and the applicant during the time period in question. It is the respondent’s position that the applicant refused to attend work without explanation other than stating that he could not come in and/or that he could not work because his wife was out of town on business. The respondent submitted that the CDRs would not be of assistance in determining what the applicant told the respondent in the text messages sent during the relevant time period.

11In addition, the respondent claimed that it has already provided the applicant with copies of some of the CDRs that it had in its possession. It noted that the CDRs in its possession do not indicate the number from which the text messages were sent or received. They only indicate the date and time that a text message was sent or received. The respondent argued that, should the CDRs produced by Bell Canada be similar to those already produced by the respondent, they would not be of assistance in this matter because they do not indicate the sender or recipient of the text messages listed on them.

12I find that the requested CDRs are arguably relevant to this Application and must be produced. Contrary to the respondent’s contentions, there does appear to be an ongoing dispute between the parties regarding the text messages that were exchanged between applicant and the respondent during the time period relevant to this Application. Among other things, in his Application and Reply, the applicant claimed that he was in direct contact with the respondent’s Vice-President, Tom Jackson Jr., throughout the relevant period of time by phone and text message. In its Response, the respondent denied that the applicant was in direct contact with Mr. Jackson throughout August and September 2012. The respondent denied that the applicant returned calls during this period of time. It also denied that the applicant advised Mr. Jackson in advance when there were days he could not work and the reasons for why he could not work.

13I agree with the respondent that one of the issues in this Application is whether the applicant advised the respondent of his family/marital status-related needs and whether he requested accommodation for those needs. This will turn primarily on what the applicant told the respondent at the relevant time. However, given the fact that there appears to be no remaining record of the text messages exchanged between the applicant and the respondent, I find that the CDRs are arguably relevant to establishing at least the timing of the communications between the applicant and Mr. Jackson during the relevant time period. Moreover, as noted above, there does appear to be an ongoing dispute between the applicant and the respondent as to whether the applicant was in direct contact with the respondent during the relevant time period.

14I do not accept the respondent’s submission that the CDRs may not be arguably relevant as they may not contain information regarding the senders and recipients of the text messages listed in them. From the letter provided by Bell Canada’s counsel, it appears that Bell Canada is able to produce CDRs that contain information regarding the senders or recipients of text messages. This would appear to be the basis for the concern expressed by Bell Canada’s counsel that the CDRs would implicate third party privacy rights. In any event, in my view the CDRs would be arguably relevant even if they did not contain information regarding the sender and recipient of the text messages since it still may be possible to compare the CDRs from the applicant’s and the respondent’s numbers in order to determine the timing of texts that were exchanged between them.

15For these reasons, I find that the CDRs requested by the applicant are arguably relevant to this Application and must be produced.

Confidentiality

16In her December 16, 2013 letter, Bell Canada’s counsel noted that the information requested by the applicant implicated third party privacy rights. In its Response to the applicant’s RFOP, the respondent raised its customers’ privacy interests as an additional reason for not granting the applicant’s production request. I note that the respondent did not raise this issue until it was raised by Bell Canada. As well, it appears that the respondent has already disclosed portions of its cellular communications and customer billing information to the applicant without redacting any of the information it claimed to be confidential or private.

17In any event, I find that any privacy interests attaching to the phone numbers on the CDRs are adequately protected by the fact that the applicant is bound by Rule 3.3 of the Tribunal’s Rules of Procedure. This Rule essentially articulates the implied undertaking rule that applies in civil litigation. Rule 3.3 stipulates that information obtained in the course of a Tribunal proceeding cannot be used by the parties for any purpose other than in the proceedings before the Tribunal.

18The Supreme Court of Canada explained the rationale for the underlying implied undertaking rule in Juman v. Doucette, 2008 SCC 8 at para. 25. Among other things, the Court held that the public interest in getting at the truth in a proceeding often requires the invasion of a litigant’s or third party’s privacy interests. Nevertheless, those privacy interests are entitled to a measure of protection. According to the Court, the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone.

19In accordance with Rule 3.3, the applicant is not permitted to use the disclosed information for any purpose outside of the proceedings before the Tribunal. In particular, I caution the applicant that he may not disclose any information contained in the CDRs to third parties or use them for any purpose unrelated to this Application.

Costs of Production

20I find that the cost of having the CDRs produced must be borne by the applicant. The parties to proceedings before the Tribunal are generally expected to bear their own costs. I see no reason to depart from this principle in this case. If the applicant believes that the respondent improperly refused to disclose evidence or improperly destroyed evidence, it is open to him to raise this issue at the hearing. It is open to him to cross-examine the respondents’ witnesses on this issue and/or ask the Tribunal to draw an adverse inference against the respondent if appropriate.

adjournment of hearing

21The applicant requested that the hearing be adjourned in light of Bell Canada’s assertion that it typically requires a minimum of 60 days’ notice to produce CDRs. The respondent submitted that the Tribunal should order Bell Canada to produce the records in time for the parties to review the CDRs prior to the February 10-11 hearing.

22In the circumstances of this case, I find that the February 10-11, 2014 hearing should be adjourned. The hearing is a little over a month away. In light of the letter from Bell Canada’s counsel, it appears unlikely that the CDRs can be produced in advance of the hearing, let alone in time to provide the parties an adequate opportunity to review them before the hearing. In these circumstances, I find that the most fair and just way of proceeding is to adjourn the hearing and reschedule it to take place more than 60 days from the date of this Interim Decision.

Mediation

23The parties have indicated that they are willing to participate in a mediation prior to the February 10-11, 2014 hearing. The applicant indicated that his willingness to do so was contingent on having received a copy of the CDRs from Bell Canada prior to the mediation.

24The Tribunal has already scheduled a mediation in this matter which was cancelled at the applicant’s request. In these circumstances, it is the Tribunal’s practice not to schedule a second mediation but instead to advise the parties of the option of mediation-adjudication on the day of the hearing.

25If the parties wish to use either February 10, 2014 or February 11, 2014 to attempt mediation in this case, the Tribunal will schedule a half-day mediation during one of those days. If the parties wish to take advantage of this option, they must advise the Tribunal in writing within seven days of this Interim Decision.

Applicant’s January 3, 2014 correspondence

26As noted above, the Tribunal sought the parties’ submissions on the issues set out above in its December 18, 2013 CAD. In addition to filing his initial submissions, the applicant filed a reply to the respondent’s submissions on January 3, 2014. By letter dated January 6, 2014, the respondent objected to the applicant’s reply and asked that it be disregarded. In reaching the above conclusions, I have not found it necessary or appropriate to consider the applicant’s January 3, 2014 correspondence.

Order

27For the reasons set out above, the Tribunal orders as follows:

a. Within 60 days of the date of this Interim Decision, Bell Canada shall produce to the applicant and to the respondent any incoming and/or outgoing call detail records in Bell’s custody, possession and/or control between cellular numbers [redacted] and [redacted] during the period between May 1, 2012 and September 24, 2012.

b. The applicant shall be responsible for paying Bell Canada the amount of $250 as reasonable costs for Bell’s production of the requested information.

c. The hearing scheduled for February 10-11, 2014 is adjourned. The Tribunal’s Registrar will reschedule the two-day hearing to take place more than 60 days from the date of this Interim Decision. The Notice of Rescheduled Hearing will contain information regarding the deadline for the parties’ pre-hearing disclosure obligations under Rules 16.2 and 17 of the Tribunal’s Rules of Procedure.

d. If the parties wish to use either February 10, 2014 or February 11, 2014 for a half-day mediation, they must advise the Tribunal within seven days of the date of this Interim Decision.