Snowball v. Halton (Municipality), 2015 HRTO 1492

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Snowball

Applicant

-and-

The Regional Municipality of Halton

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 4, 2015

Citation: 2015 HRTO 1492

Indexed as: Snowball v. Halton (Municipality)

WRITTEN SUBMISSIONS

Lisa Snowball, Applicant

Paul Starkman, Counsel

The Regional Municipality of Halton, Respondent

Amanda Lawrence, Counsel

1This Interim Decision addresses a production request made by the applicant.

2In her Application, the applicant alleged that the respondent discriminated against her because of her disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that her disability and/or requests for accommodation were factors in the termination of her employment. The respondent denied discrimination and submitted that the applicant’s employment was terminated solely due to performance issues.

3The Application is scheduled to be heard on January 20-21, 2016.

production request

4By Request for Order During Proceedings (“RFOP”), the applicant requested production of the following:

copies of all e-mails from January 2011 until the date of the applicant’s termination from employment with the respondent in October 2014.

5The applicant attached to her RFOP, various letters exchanged by the parties in relation to the applicant’s production request. From this correspondence, it appears that the respondent has produced some of the e-mails sought by the applicant but not all of them.

6The respondent opposed the applicant’s request. Among other things, the respondent submitted that the applicant’s request is overbroad and that its efforts have been frustrated by the applicant inaction and refusal to cooperate. The respondent submitted that it has made good faith efforts to produce e-mails sought by the applicant. However, the respondent submitted that the applicant is not entitled to all 14,000 e-mails in her e-mail account, as many are irrelevant to the issues raised in this proceeding. The respondent also submitted that the applicant is not entitled to e-mails pertaining to other employees of the respondent.

Analysis

7At 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.

8I find that the applicant’s production request, as currently framed, is overbroad, not sufficiently particularized, and would encompass a myriad of e-mails that are not relevant to the issues to be determined in this proceeding.

9The issue before the Tribunal in this case is to determine whether the applicant’s disability and/or her requests for accommodation were factors in the respondent’s decision to terminate her employment or whether instead the respondent terminated her employment solely due to performance issues. In this context, e-mails relating to the applicant’s disability, her requests for accommodation and e-mails that support or refute the respondent’s position in relation to the applicant’s performance may be arguably relevant. However, this does not warrant ordering production of every email exchanged by unspecified persons over a period of almost four years. I agree with the respondent that the applicant’s production request, as currently framed, is overly broad.

10I note that the applicant has particularized her request to a certain extent in her correspondence with the respondent. However, it is unclear from this correspondence which categories of e-mails have been produced and which have not. If the applicant believes that there exist e-mails that are arguably relevant to the issues raised in this proceeding that the respondent has not produced, she must file a more particularized production request that identifies particular e-mails, or categories of e-mails, she is seeking. She must also explain why these e-mails are arguably relevant to the issues raised in this proceeding. I note that the hearing of this Application is fast approaching. If the applicant does file a new production request she must do so well in advance of the hearing to ensure time for the Tribunal to rule upon her request and time for the respondent to comply with any production order if one were to be made by the Tribunal.

order

11For the reasons set out above, the applicant’s production request is denied.