Salvador Bejar v. 2001 Audio/Video Centre Ltd., 2015 HRTO 1399

Human Rights Tribunal of Ontario

B E T W E E N:

Salvador Bejar Applicant

-and-

2001 Audio/Video Centre Ltd. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: October 21, 2015
Citation: 2015 HRTO 1399
Indexed as: Bejar v. 2001 Audio/Video Centre Ltd.

WRITTEN SUBMISSIONS

2001 Audio/Video Centre Ltd., Respondent

Sezar Bune, Counsel

Introduction

1This Interim Decision addresses the respondent’s production request filed on September 25, 2015.

2The Application alleges the respondent discriminated against the applicant on the basis of disability by failing to accommodate him and by terminating his employment contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”).

respondent’s production request

3A party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding and, if the requested information triggers concerns regarding privacy or privilege, that any such interests in confidentiality are outweighed by principles of fairness. See McKay v. Toronto Police Service Board, 2009 HRTO 1220 (“McKay”).

4The “arguable relevance” threshold has been described as “not a particularly high bar”. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18, at para. 8, and the cases cited therein. While “arguable relevance” is not a high onus for the requesting party to meet, there must be a nexus between the material(s) sought and the subject-matter of the application. The Tribunal in McKay explained the first step in the analytical approach to assessing “arguable relevance”, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law…. 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. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

5In the second step of the analysis, the Tribunal must consider other interests, such as confidentiality and fairness. Even if the documents meet the “arguable relevance” threshold, they may not be disclosed at all, or may be subject to limited disclosure if there are circumstances such as privilege claims or privacy concerns that require reconciliation or protection. In Lampi v. Princess House Products Inc., 2008 HRTO 1 at para. 10, the Tribunal noted that

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

6Therefore, the Tribunal must consider whether fairness dictates there should be any limitations, terms or conditions on production to address such matters as confidentiality.

respondent’s production request

7The respondent filed a request for particulars and for production of documents, specifically requesting:

a. Medical documentation confirming the diagnoses of all the applicant’s disabilities alleged in the Application; and

b. A copy of the applicant’s resume/c.v.

8The applicant did not file a Form 11 Response to a Request for an Order During Proceedings and therefore raised no issues of privacy or privilege.

9The respondent states the applicant has alleged in the Application and Reply that he has various diagnosed medical conditions/diagnoses, including back pain/herniated discs; diabetes; cholesterol; and gout, but has not disclosed any medical documents. He further submits that the applicant has not provided a copy of his resume/c.v. although he has alleged he has extensive work experience as a salesperson.

10The Tribunal sent to the parties a Notice of Hearing on July 31, 2015, in which the parties were advised that they were required, by August 21, 2015, to send each other documents each of them had in their possession that may be relevant to the issues raised in the case, except documents that are privileged.

11In response to that disclosure, the respondent wrote to the applicant on September 21, 2015 and requested a copy of his resume and documentation regarding his medical diagnosis for back pain/herniated discs and all disabilities alleged in the Application.

12The applicant replied on the same day that he had disclosed all evidence he considered arguably relevant.

13The respondent replied that what the applicant considered arguably relevant was not the point and that his position was self-serving and contrary to the Tribunal’s disclosure requirements. He stated that all evidence that potentially is relevant to any issue in the proceedings must be disclosed to allow the respondent to make a full answer and defence and to allow proper adjudication by the Tribunal.

14The applicant reiterated that he had disclosed all arguably relevant evidence in his possession but that he would meet his ongoing duty to disclose arguably relevant evidence if and when it becomes available. He stated he looked forward to receiving the respondent’s RFOP (“Request for an Order During Proceedings”).

15The respondent filed this production request on September 25, 2015, to which the applicant has not responded.

16The respondent submits the requested documents are potentially relevant to the key issues in dispute, including among other things, the reason the applicant’s employment was terminated. The respondent submits the requested documents should be disclosed to ensure the respondent knows the case to be met and can make full answer and defence; to encourage the timely resolution of any facts in dispute; and to allow the Tribunal to properly adjudicate the Application.

applicant’s medical records

17While there should be a balance struck between an applicant’s right to maintain control over his medical information and the requirements of a fair, just and expeditious disposition of this matter, including consideration of the respondent’s right to answer the allegations, in this case the applicant has not responded to the respondent’s request.

18There is no question that there is a nexus between the documents requested and the applicant’s allegations.

19I find that the medical information about the disabilities in relation to which the applicant alleges the respondent failed to meet its duty to accommodate him and allegedly ultimately terminated him is arguably relevant and should be produced.

20In addition, because the applicant alleges extensive work experience as a salesperson and the respondent alleges the applicant was terminated based on his work performance, the applicant also shall disclose his resume/c.v.

21These production orders are appropriate to ensure that the respondent is able to properly defend against the applicant’s allegations.

order

22The Tribunal orders as follows:

a. By November 6, 2015, the applicant shall deliver to the respondent a copy of all medical documents about the disabilities in relation to which the applicant alleges the respondent failed to meet its duty to accommodate him and ultimately terminated him, and shall file a Form 23 Statement of Delivery with the Tribunal; and

b. By November 6, 2015, the applicant shall deliver to the respondent a copy of his c.v./resume, and shall file a Form 23 Statement of Delivery with the Tribunal.

23I am not seized.