Clarke v. Balan International, 2015 HRTO 1494

Human Rights Tribunal of Ontario

B E T W E E N:

William Clarke Applicant

-and-

Balan International, David Rong, Robin Fan and Pet Valu Canada Inc. Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: November 5, 2015 Citation: 2015 HRTO 1494 Indexed as: Clarke v. Balan International

WRITTEN SUBMISSIONS

William Clarke, Applicant Self-represented

Balan International, Robin Fan and David Rong, Respondents Jean-Alexandre De Bousquet, Counsel

Pet Valu Canada Inc., Respondent Christine Martin Bevilacqua, Representative

1The purpose of this Interim Decision is to address the applicant’s Requests for orders requiring the respondents to produce documents.

2The applicant filed this application on September 2, 2014 alleging discrimination in employment on the basis of disability and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application has been scheduled for hearing on November 25 and 26, 2015.

3The applicant requests that the respondent, Balan International, (“Balan”) produce to the applicant:

• Franchise agreement between Balan and the respondent, Pet Valu Canada Inc. (“Pet Valu”)
• Video of entire shifts of the applicant on July 3 and 5, 2014
• Store operating manual/procedures
• All training/policy memos regarding workplace safety, violence and harassment between Balan International and Pet Valu.

4Balan argues that, except for the video footage, the documents requested are not relevant. As for the video footage, Balan indicates that the footage does not exist because the server only keeps video footage for a period of 2 weeks, after which it is deleted.

5The applicant requests that Pet Valu produce to the applicant:

• The above noted franchise agreement
• All training/policy memos regarding workplace safety, violence and harassment between Balan and Pet Valu and between all franchisees and Pet Valu before/after July 5, 2014
• All internal memos and emails related to workplace safety, violence and harassment since July 5, 2014
• Dated records of completion of LMS Module Training related to workplace safety, violence and harassment completed by David Rong and Robin Fan
• Franchise operations/training manual between Pet Valu employees
• Any communications by fax, email, text message, mail between Pet Valu Canada Inc. employees and Franchise Operator Wilf Clarke (the applicant’s father) in relation to this proceeding.

6It is the position of Pet Valu that, except as noted below, these documents do not exist or are not relevant to the matters in the Application.

7The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9.

8The issue before the Tribunal is to determine whether the applicant was subject to discrimination in employment on the basis of disability and marital status. The applicant has requested production of materials related to workplace safety. In my view, these materials do not remotely relate to the issue before the Tribunal and therefore do not warrant a production order. The applicant also seeks production of all store operating manuals/procedures and “franchise operations/training manual between Pet Valu employees” but he fails to demonstrate a nexus between these materials and the issue before the Tribunal.

9The applicant seeks production of any written communications between Pet Valu and Wilf Clarke relating to the Application as well as various video tapes. Pet Valu indicates that there has been no communications between it and Wilf Clarke and Balan has indicated that the video footage requested by the applicant has been erased. The Tribunal cannot order production of materials that do not exist.

10Finally, the applicant seeks production of the franchise agreement between Pet Valu, the franchisor and Balan, the franchisee. Pet Valu has indicated that it will disclose the franchise agreement, however, it requests that the Tribunal permit it to redact the following confidential terms: fees; restrictive covenants; assignment, transfer and sale, change of operator; and, Exhibit “A” to the agreement which sets our particulars of the ownership interest. In my view, these terms are not arguably relevant to the Application and therefore, may be removed from the franchise agreement.

Order

11The Tribunal orders as follows:

a. Within 10 days from the date of this Interim Decision the respondent Pet Valu will provide the applicant with a copy of the franchise agreement redacted in accordance with paragraph 10 above;

b. Except for the redacted franchise agreement, the applicant’s Requests for production are denied.