DeRuelle v. Molson Coors Canada, 2015 HRTO 1205

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ed DeRuelle Applicant

-and-

Molson Coors Canada Respondent

INTERIM DECISION

Adjudicator: Sheri Price

Date: September 10, 2015

Citation: 2015 HRTO 1205

Indexed as: DeRuelle v. Molson Coors Canada

WRITTEN SUBMISSIONS

Ed DeRuelle, Applicant

Laurie Kent, Counsel

Molson Coors Canada, Respondent

Hugh Dyer, Counsel

1This is an Application under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that the respondent employer discriminated against him with respect to employment because of disability and age. In particular, the applicant alleges that, commencing in or around February 2014, the respondent refused to accommodate his disability-related needs in the workplace and/or harassed him in an attempt to force the applicant to quit his employment and/or to create a pretext for the termination of his employment. The applicant alleges that this was part of an institutional agenda on the part of the respondent to eliminate older employees and employees with disabilities from its workforce.

2The respondent denies the applicant’s allegations.

3I have been assigned to hear the Application on September 23 and 24, 2015. In reviewing the file in anticipation of the hearing, I note that the applicant has filed a Request for a Tribunal-ordered inquiry, which Request remains outstanding.

4Pursuant to s. 44(1) of the Code, the Tribunal may appoint a person to conduct an inquiry in order to obtain evidence relevant to the Application, if it is satisfied of three things: (1) that such an inquiry is required in order to obtain the evidence in question; (2) that such evidence may assist in a fair, just and expeditious resolution of the merits of the Application; and (3) that it is appropriate to order an inquiry in the circumstances.

5In the case at hand, the applicant requests that the Tribunal appoint a person to conduct an inquiry to obtain copies of all emails and/or Blackberry messenger messages between members of the respondent’s managerial staff relating to “their plans to force/encourage retirement of senior workers and disabled workers or otherwise relating to the future manpower plans for the brewery and how they intend to achieve them by getting rid of senior and disabled employees.” The applicant submits that a Tribunal-ordered inquiry is necessary to obtain the above-noted internal communications, because the respondent will not voluntarily produce the evidence in question.

6The respondent opposes the applicant’s request. The respondent submits that the applicant may obtain copies of relevant documents through the Tribunal’s usual production process, established in the Tribunal’s Rules of Procedure. The respondent submits that there is no reason to conclude that the Tribunal’s production process will not be satisfactory or fail to result in the production of all relevant documents in the case at hand. It submits that an inquiry under s. 44(1) of the Code is not warranted in the circumstances.

7As the Tribunal has stated in a number of decisions, the appointment of a person to conduct a Tribunal-ordered inquiry is an extraordinary measure that is not undertaken simply because there may be disputes about the production of arguably relevant documents: Amazan v. Toronto Catholic District School Board, 2015 HRTO 991; White v. University of Ottawa, 2009 HRTO 1057. Pursuant to its Rules of Procedure, the Tribunal has the power to determine disputes regarding the production of documents and to compel the production of arguably relevant documents. In the event that the applicant seeks to have the respondent produce additional documents that are arguably relevant to the issues to be determined in this case, and which have not already been produced pursuant to the Rules of Procedure, he may file a Request for an Order during Proceedings seeking an order for production of the documents in question. However, a Tribunal-appointed inquiry is not appropriate in the circumstances of this case. Accordingly, the applicant’s Request for a Tribunal-ordered inquiry is denied.