Madhi Tarabain v. The Regional Municipality of Halton, 2014 HRTO 55

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Madhi Tarabain

Applicant

-and-

The Regional Municipality of Halton

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 14, 2014

Citation: 2014 HRTO 55

Indexed as: Tarabain v. Halton (Regional Municipality)

WRITTEN SUBMISSIONS

Mahdi Tarabain, Applicant

Self-represented

The Regional Municipality of Halton, Respondent

Lauri Reesor, Counsel

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 family status and reprisal.

2This Interim Decision addresses the applicant’s Request for Order During Proceedings (“RFOP”), the timeliness of some of the allegations, and the complaint the applicant filed under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“the ESA”).

THE APPLICANT’S rfop

The Applicant’s Position

3The applicant filed a RFOP requesting that the Tribunal order the respondent produce the contents of his Outlook email folder (“the emails”) as well as interview evaluations for the candidates that it considered for the position which he held. His request includes the interview evaluations for the time at which he was hired, as well as those considered subsequent to his termination.

4The applicant submits that the emails are relevant to his Application because the respondent sent him emails related to issues raised in the Application and he sent emails in response to the respondent’s emails. He submits that the interview documentation is relevant to his request to be reinstated into the position he held prior to termination.

The Respondent’s Position

5The respondent opposes the applicant’s request.

6The respondent submits that it has gone to considerable length to collect all documents in its possession that are arguably relevant to the issues raised in the Application and the Response. It has produced to the applicant two volumes of documents, amounting to several hundred pages of performance documentation, evaluation forms, parental leave documentation and emails between the applicant and his managers that address his performance, including emails containing the applicant’s responses. It submits that its managers have completed a lengthy, costly and exhaustive search of their Outlook folders for emails relating to the performance issues and parental leave of the applicant, which the respondent has disclosed. It notes that the applicant has not identified which emails are missing from the respondent’s production or established a nexus for his request. An order from the Tribunal requiring the respondent to produce the applicant’s entire Outlook email folder will require an individual from the respondent, or legal counsel, to spend many hours reviewing the applicant’s emails to determine the relevance of the emails to the issues raised in the pleadings, as the applicant’s Outlook folder will contain thousands of emails over the course of the applicant’s employment that will have no relevance to the issues before the Tribunal. The respondent will not be able to recover the costs associated with the retrieval of these records.

7Further, the respondent submits that the issue in the Application is whether or not the applicant was discriminated against by the respondent on the basis of family status by performance managing him and terminating his employment a couple of months after he returned from parental leave and is not a wrongful dismissal or a hearing about just cause. The respondent submits that the performance management of the applicant commenced many months prior to the applicant advising the respondent that he intended to take a parental leave.

8With respect to the interview evaluations of candidates for the position that the applicant held prior to termination, the respondent submits that the request is vague, potentially reaching far too many individuals and not limited in time. It has no relevance to the applicant’s stated rationale of providing a basis for his reinstatement.

9The respondent also submits that it only retains interview evaluations for a one-year period, at which point they are destroyed. Even if such documentation existed, the applicant’s request impinges on the privacy of other individuals who may or may not be employed by the respondent. Finally, the respondent submits that such documentation is not relevant to whether or not the applicant should be reinstated, given the Tribunal’s broad remedial powers to make the applicant “whole” in the event that it finds discrimination occurred, which the respondent vehemently denies. Evidence about how other applicants to the same job were evaluated during the interview process has no bearing on the issues or the remedy of reinstatement.

10The respondent acknowledges that it has received the applicant’s arguably relevant documents, including his mitigation efforts, but submits that his income tax returns have not been disclosed. It requests, in the interests of efficiency, that the Tribunal order production of the applicant’s income tax returns.

Analysis and Decision

11At the pre-hearing stage, the Tribunal will order disclosure of documents if the requesting party establishes that they are arguably relevant to the issues before the Tribunal. The Tribunal has held that this is not a particularly high bar. However, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and the issues in dispute before the Tribunal. See Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inq.) as cited in Dungus v. Toronto Police Services Board, 2009 HRTO 389 at para. 10.

12Further, in Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, the Tribunal stated:

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by the potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

13Without addressing the respondent’s submissions on the amount of time it would take to review the applicant’s Outlook emails, I decline to order the applicant’s request that the respondent produce all of his Outlook emails.

14Although the parties are not required to file copies of their arguably relevant documentation with the Tribunal, the respondent filed a copy of an index of documents for one volume of documentation it provided to the applicant, as well as a photocopy of a second volume, that contains a heading “Performance Management” with three tabs. The first tab is called “Up to Jan 20, 2012”; the second “Up to Feb 22, 2012” and the third “Oct 9 – Nov 19, 2012”. The respondent has submitted that it has disclosed several hundred pages of material to the applicant and has disclosed everything that, in its opinion, is arguably relevant to the issues before the Tribunal.

15The applicant has not identified what specific emails are missing from the respondent’s productions, or even a time period over which he seeks production. He has not provided an explanation as to why all of his Outlook emails for the duration of his entire employment are relevant to the issues in his Application. Accordingly, I find that his request for his Outlook emails is overly broad and his request for their production is declined.

16In this regard, the Tribunal notes that the hearing will be limited to whether or not the applicant was discriminated against in employment on the basis of family status and/or reprisal. The Tribunal’s role is not to determine whether or not the applicant’s termination was appropriate or warranted, or even comment on this; instead, its role is to determine whether or not the termination was contrary to the Code. See Junejo v. Peel (Regional Municipality), 2009 HRTO 1912 at para. 36.

17As for the applicant’s request for the interview evaluations of candidates, the Tribunal also declines to order production of these. I do not see the relevance of ordering disclosure for the time period that the applicant himself was hired, August 2010, as the allegations in the Application do not start until the summer of 2011.

18Furthermore, I also find that the interview evaluations for those considered for the applicant’s position subsequent to his being hired or terminated are not relevant either to the allegations contained in his Application or to his requested remedy of reinstatement. The Tribunal has broad remedial powers under section 45.2 of the Code, which includes the ability to reinstate, and there is nothing raised in the Response which brings into relevance the evaluations of candidates who were considered for the applicant’s position either while he was hired or subsequent to his termination in relation to the reinstatement remedy the applicant is seeking. As a general observation, I note that the respondent denies for various reasons that the Code was violated at all.

19With respect to the respondent’s request that the applicant disclose his income tax returns, I note that on the Application the applicant wrote that he is seeking “monthly amount payments and applicable benefits x the number of months this matter is dealt with” as one of the remedies for which he is seeking. This appears to be a claim for loss of wages. The respondent says that the applicant has produced a log of his mitigation efforts, but he has not disclosed his income tax returns.

20If the applicant is seeking loss of wages, he is required to disclose any documentation that is arguably relevant to that claim. This would include, but is not limited to, documentation pertaining to his mitigation efforts and any sources of income or benefits (such as employment insurance benefits) during the period for which he is claiming. Pay stubs, T4s, T4Es, and income tax returns are often disclosed in support of an applicant’s claim for loss of wages. Accordingly, the Tribunal directs the applicant to immediately disclose to the respondent any relevant documentation pertaining to his loss of wages claim.

the timeliness of some of the applicant’s allegations

21The bulk of the applicant’s allegations are from 2012, pertain to his performance, his parental leave, and his subsequent termination. However, the applicant also makes allegations pertaining to a seminar course that he took in the summer of 2011 as well as performance issues in January 2012. His Application was filed March 7, 2013. It may be that the applicant’s allegations that pre-date March 7, 2012 are outside of the mandatory one-year limitation period established by the Code.

22Section 34(1) of the Code provides:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

23In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a panel of the Tribunal commented on a “series of incidents” within the meaning of section 34(1)(b) of the Code in relation to continuing wage payments that the applicant alleged were discriminatory, but had received, without objection, for more than 10 years. The Tribunal stated, at para. 30:

A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

24If an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

25Accordingly, the Tribunal finds it appropriate, at this stage, to receive submissions from the applicant addressing a potential delay for any allegations that pre-date March 7, 2012. The applicant is directed to file these submissions with the Tribunal, copying the respondent’s counsel, within seven days of the date of this Interim Decision. In his submissions, the applicant should specifically address whether there is a good faith explanation for the delay, if there is a delay, and/or if the allegations form a “series of incidents” within the meaning of section 34(1)(b) of the Code.

26If the respondent wishes to file submissions in response to the applicant’s submissions, it is directed to file them with the Tribunal, copying the applicant, within seven days of receipt of the applicant’s submissions.

27If the applicant does not file submissions as directed, the Tribunal may decide based upon the materials filed to date whether or the allegations that pre-date March 7, 2012 are untimely, and if untimely are dismissed as being untimely, or it may issue further case directions.

The applicant’s ESA complaint

28In the Response, the respondent submits, at paras. 48 to 50, that the applicant filed a complaint under the ESA regarding his performance evaluation and alleged reprisal for taking a parental leave. It attached a copy of the Employment Standards Officer’s (“ESO”) decision dismissing the ESA complaint. The respondent advises that the applicant appealed the ESO’s decision, a hearing is pending before the Ontario Labour Relations Board (“OLRB”) in July 2013, and the applicant is “forum shopping” by filing an Application with the Tribunal.

29Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application

30Based upon the ESA complaint which was to proceed to a hearing before the OLRB, the Tribunal finds it appropriate to receive an update about the OLRB hearing and whether it has issued a decision. Accordingly, the Tribunal directs that the applicant, within seven days, to advise the Tribunal by email, copying the respondent, as to whether or not the OLRB has issued a decision and if so, to provide the Tribunal, and the respondent’s counsel, a copy of the OLRB decision.

31Upon receipt of this information, the Tribunal may issue further case management directions.

order

32The Tribunal orders as follows:

a. The applicant’s request for production of his Outlook emails, as set out in his RFOP, is denied;

b. The applicant is directed to immediately disclose to the respondent any documentation pertaining to his apparent claim for loss of wages;

c. The applicant is directed to file submissions about his allegations that pre-date March 7, 2012 being possibly untimely, with the Tribunal, copying the respondent’s counsel, within seven days of the date of this Interim Decision;

d. If the respondent wants to file submissions responding to the applicant’s submissions in c. above, it is directed to file submissions with the Tribunal, copying the applicant, within seven days of receipt of the applicant’s submissions;

e. The applicant is directed to advise the Tribunal, copying the respondent’s counsel, by email within seven days of the status of the ESA complaint and if the OLRB has issued a decision to provide a copy of that decision.