Garvey Kowlessar v. SoCast Inc., 2015 HRTO 1317

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garvey Kowlessar Applicant

-and-

SoCast Inc. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: October 5, 2015 Citation: 2015 HRTO 1317 Indexed as: Kowlessar v. SoCast Inc.

WRITTEN SUBMISSIONS

Garvey Kowlessar, Applicant Allison Greene, Counsel

So Cast Inc., Respondent Sharon Sam, Counsel

1This Application is scheduled to be heard October 8-9, 2015. This Interim Decision addresses a production request made by the respondent.

RESPONDENT’S PRODUCTION REQUEST

2By Request for Order During Proceedings (“RFOP”) filed October 2, 2015, the respondent requested production of any job applications that the applicant submitted in the 6 months prior to January 6, 2014. The respondent submits that these documents are arguably relevant to its position that the applicant’s resignation had nothing to do “or very little to do” with any alleged poisoned work environment.

3The applicant produced documents relating to his job search efforts after his resignation but has refused to produce copies of any applications made prior to his resignation. In his response to the RFOP, the applicant claims that these earlier documents are irrelevant. However, he also submits that, if anything, any job search efforts bolster rather than undermine his allegation that his work environment was poisoned and became intolerable for him.

Analysis

4At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220 (“McKay”). It is the requesting party that has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after materials and the subject-matter of the Application. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay, above, at para. 13.

5I find that the requested documents are arguably relevant and must be produced. These documents are arguably relevant to provide an inferential link to support the respondent’s line of defence. In order to be arguably relevant, documents do not have to support the applicant’s theory of his own case they way also be arguably relevant to the respondent’s line of defence. In any event, I note that, from the applicant’s submissions in his response to the RFOP, it appears that the applicant also considers the documents arguably relevant to support its case.

6For the above reasons, the applicant must produce the requested documents to the respondent and file with the Tribunal. Either party may rely upon any of the job search documentation filed with the Tribunal that is entered into evidence at the hearing.

MEDIATION-ADJUDICATION

7I am aware that the parties in this case did not participate in a mediation.

8The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal prior to the first day of the hearing, or at the outset of the hearing.

Direction

9For the reasons set out above, the Tribunal orders as follows:

a. The applicant must produce to the respondent and file with the Tribunal copies of all job applications made in the six months prior to January 6, 2014. These documents must be produced and filed no later than 5 PM Tuesday October 6, 2015.