Grant v. Bombardier Inc., 2015 HRTO 1071

Human Rights Tribunal of Ontario

B E T W E E N:

Malcolm Grant

Applicant

-and-

Bombardier Inc., Bombardier Commercial Aircraft

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: August 12, 2015

Citation: 2015 HRTO 1071

Indexed As: Grant v. Bombardier Inc.

Introduction

1This Application, filed on November 13, 2014, alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A summary hearing in this Application was scheduled to be heard on August 11, 2015. The hearing was also to hear the parties’ submissions with respect to the applicant’s request to amend his Application.

3By a July 3, 2015 Form 10 Request for an Order During Proceedings, the applicant requested production of certain documents and information (“the production request”). On August 7, 2015, the Tribunal issued a Case Assessment Direction directing the parties to be prepared to address the production request, and the parties made these submissions at the outset of the August 11, 2015 hearing.

Request for Production

4Rule 16 of the Tribunal’s Rules of Procedure set out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

5The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent.

Production on Consent

6In this particular case, the respondent agreed to produce the following documents or information requested by the applicant:

a. The résumés of the successful candidates for the positions where a candidate was hired; and

b. The reasons why the four positions were cancelled.

7The respondent will provide these documents and the information to the applicant by no later than August 25, 2015.

Parties’ Submissions with respect to production of other documents requested

8The applicant also requested disclosure of the following, to which the respondent did not consent:

a. the notes, minutes and email communications related to why the four positions referred to in subparagraph 5(b), above, were cancelled;

b. any internal communications mentioning the applicant’s name in relation to any of the twelve positions he applied for; and

c. the résumés of all other candidates to whom the respondent compared the applicant when it suggested his résumé was “not detailed enough”.

9The applicant requests production of these documents, recognizing that production is ordered only in exceptional circumstances. The applicant submits he requires these documents because the respondent takes the position on the summary hearing that the applicant’s allegations are ones of unfairness, or are bald assertions. He refers to the decision of the Tribunal in a prior summary hearing for another Application, Grant v. Bombardier Inc., 2012 HRTO 578, in which his Application was dismissed because the Tribunal accepted the respondent’s reasons for not hiring the applicant. If the Tribunal is going to rely on the respondent’s assertions, then disclosure of documents in the respondent’s possession should be ordered to allow the applicant to determine if the respondent’s assertions are based in fact.

10The applicant submits production of documents and information in such circumstances is akin to the Tribunal’s ordering of disclosure to permit a respondent to file an adequate Response.

11The respondent agrees production of documents is ordered only in exceptional circumstances. In this case, production should be limited to documents that are relevant and necessary to allow the applicant to prepare for the summary hearing.

12The applicant’s request for the documents in paragraph 8, above, is too broad and amounts to a fishing expedition. Specifically with respect to the internal communications that mention the applicant’s name in connection with any of the 12 positions, these are not relevant and disclosure of them is unnecessary at this early stage of the proceedings.

Decision and Analysis

13The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances such as when production is necessary for the respondent to file a Response: see Hashi v. Toronto Transit Commission, 2012 HRTO 869. I find that the applicant in this case has failed to establish the exceptional circumstances necessary for the Tribunal to grant its request for early production.

14While the applicant argues he requires the documents because of the position the respondent takes on the summary hearing, including listing the alternate reasons why the applicant was not interviewed for the positions for which he applied, the test on a summary hearing is whether the Application has no reasonable prospect of success, and for the purposes of the summary hearing, the applicant’s assertions are assumed to be true unless there is clear evidence to the contrary.

15For that reason, I find it premature to order disclosure of the documents requested in paragraph 8, above.

Order and Directions

16On consent, the respondent shall provide to the applicant the following documents and information by no later than August 25, 2015:

a. The résumés of the successful candidates for the positions where a candidate was hired; and

b. The reasons why the four positions were cancelled.

17The applicant’s request for documents as set out in paragraph 8, above, is denied.

18The summary hearing, and the preliminary hearing to deal with the applicant’s request to amend his Application, shall take place on September 17, 2015, at 9:30 a.m. Call-in information will follow from the Tribunal.