HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derrick Deroy
Applicant
-and-
AppleOne Services Ltd. and Michelle Snow
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Deroy v. AppleOne Services Ltd.
WRITTEN SUBMISSIONS
Derrick Deroy, Applicant
Krishna Badrinarayan, Representative
AppleOne Services Ltd. and Michelle Snow, Respondents
Tim Lawson, Counsel
1This Interim Decision deals with a Request for Order During Proceedings (RFOP) filed by the applicant. The RFOP concerns disclosure of two documents by the respondents that the applicant asserts should not have been disclosed because they are privileged because they relate to settlement discussions between the parties.
2This matter was previously raised by the applicant’s representatives and was addressed in a Case Assessment Direction dated June 19, 2013. At that time, the applicant objected to the Response to the Application that the respondents filed on the grounds that the Response referred to settlement discussions. After the applicant objected to this, while not agreeing that the documents mentioned in the Response were in fact protected by privilege, the respondents filed an amended Response, removing the reference to the settlement discussions. The June 19, 2013 Case Assessment Direction noted this development.
3In the recent RFOP, the applicant expresses continued concern about the original Response. The applicant asserts that the original Response should be “struck and redacted” and also “expunged and sealed”. He also appears to be of the view that the original concerns about the documents that the applicant asserts are privileged have not been appropriately or sufficiently dealt with.
4There are two letters that are the source of the applicant’s complaints. I note that the applicant has attached these two letters to his recent RFOP. The first is a letter dated December 13, 2011, from the applicant’s representative to the personal respondent. This is a letter referred to by the respondents in their original Response, and which was removed from the amended Response. The applicant takes the position that this letter is privileged because it was a communication concerning settlement. The applicant notes that the letter stated it was “without prejudice”. As the respondents note, it is not clear that this communication did in fact concern settlement. In any event, the respondents have removed it from their Response and will not rely on it as evidence.
5The second document in question is a letter dated December 19, 2011. It was sent by the respondents’ then representative in response to the December 13, 2011 letter discussed above. This letter stated it was “under settlement privilege.” The applicant asserts that since this letter was a communication concerning settlement it is privileged and should not be disclosed.
6The respondents submit that if there is privilege that attaches to this communication, the privilege rests with the respondents and not with the applicant.
7The letter of December 19, 2011 includes information that is relevant to the issues in the hearing as it includes discussion of the respondents’ position on the accommodation of the applicant’s disability. It also includes a section that sets out a settlement offer.
8Whether or not the applicant can assert privilege with respect to this letter, it is clear that the part of the December 19, 2011 letter that includes a settlement offer is not relevant to the issues in the Application.
9The respondents are directed to provide a copy of the December 19, 2011 letter with the section under the heading “Settlement” blacked out. The document in this form is admissible as evidence in the hearing.
10I will not consider the December 13, 2011 letter or the section of the December 19, 2011 letter that will be blacked out in the hearing or in any future decision in respect of this Application.
11Any further concerns the applicant may have about these documents may be raised at the hearing.
Dated at Toronto, this 12th day of March, 2014.
“Signed by”
Brian Cook
Vice-chair