Williams v. Toronto Transit Commission, 2015 HRTO 1507

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Williams

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 9, 2015

Citation: 2015 HRTO 1507

Indexed as: Williams v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Donald Williams, Applicant

Self-represented

Toronto Transit Commission, Respondent

Lucy Siraco, Counsel

Introduction

1This Interim Decision addresses the applicant’s and respondent’s requests for production of documents in advance of the hearing of this matter scheduled for February 25-26, 2016.

background to application

2Despite all of the materials already exchanged in this proceeding, the issue before the Tribunal is a narrow one.

3In his Application, the applicant alleged that the respondent discriminated and reprised against him contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, he alleged that the respondent denied him overtime opportunities sometime between December, 2009 and the date on which the Application was filed (June 28, 2010). Based on the production request he submitted, it now appears that the relevant time period is from January 2, 2010 to June 28, 2010. The applicant also alleged that on June 19, 2010 the respondent detailed him to do work he “does not do”. The applicant alleged that the respondent took these actions against him as a reprisal under the Code and/or due to his association with an individual who is allegedly identified by one of the grounds protected under the Code.

4Although the applicant makes broader non-Code related allegations in his Application, his only allegation that is Code-related is the one I have just identified relating to denied overtime between January 2, 2010 and June 28, 2010. This is the only issue that will be addressed at the hearing.

Applicant’s Production Request

5The applicant has requested production of the following documents:

All documents of all overtime assigned and/or worked by Operators at Birchmount Division from January 2, 2010 through June 30, 2010 to include but not limited to (sic) Volunteer Notification Form, Off duty sheets, Shareboard sheets and also Spareboard sheets and off duty sheets from June 21, 2015 through July 25, 2015. List of all operators from Birchmount division that made over $100, 000 during the year 2010.

6The applicant claims that the requested documents will show that he was bypassed for overtime and that other operators are favoured by staff for overtime assignments.

7The respondent opposed the applicant’s production request as overbroad.

Findings

8At 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.

9I find that the applicant’s production request is overbroad as it encompasses documents that are not arguably relevant to this Application.

10First, any documents relating to time periods other than January 2, 2010 to June 28, 2010 are not arguably relevant to this Application. As made clear above, this Application relates to that time period only. Therefore, the applicant’s request for documents from 2015 is denied.

11Second, the list of all operators from the Birchmount Division who earned over $100,000 in 2010 has no arguable relevance to the narrow issues in dispute in this Application.

12Third, I agree with the respondent that any documents relating to the overtime assigned to other operators at the Birchmount Division during the relevant time period are not arguably relevant to this Application. The documents that are arguably relevant are the overtime opportunities that were available to operators on the days and times that the applicant clearly volunteered for by submitting a volunteer overtime form. From the Application, it is unclear for which days/times the applicant claims to have volunteered for overtime within the relevant time period. According to the respondent, it requested particulars from the applicant on this point and received no response.

13In the absence of a response from the applicant, the respondent has agreed to produce, on a without prejudice basis, copies of the Birchmount Division’s daily slips for the operator off-days of Saturdays and Sundays between January, 2, 2010 and June 27, 2010. I find that these documents are the only arguably relevant documents contained within the applicant’s production request. By producing these documents, the respondents will have produced all arguably relevant documents within the scope of the applicant’s overbroad production request. It is appropriate for the respondent to redact any private or confidential information relating to other operators.

respondent’s production request

14In its Response to the applicant’s production request, the respondent requested that the applicant produce copies of the volunteer overtime slips he submitted between January 2, 2010 and June 27, 2010.

15The applicant did not respond to this request and the time for doing so has now passed.

16I find that these overtime slips are highly relevant to the issues raised in this case. The applicant claims he was denied overtime in breach of the Code. Of significant relevance is whether the applicant ever submitted the appropriate slips to volunteer for overtime and what days/times he volunteered to work overtime. Accordingly, I grant the respondent’s production request.

orders

17For the reasons set out above, the Tribunal orders as follows:

a. Within 14 days of the date of this Interim Decision, the respondent is ordered to produce to the applicant the records it has agreed to produce on a without prejudice basis: that is, the Birchmount Division daily slips for Saturdays and Sundays between January 2, 2010 and June 27, 2010. The respondent is permitted to redact only private/confidential information relating to other operators.

b. Within 14 days of the date of this Interim Decision, the applicant is ordered to produce copies of the volunteer overtime slips he submitted between January 2, 2010 and June 27, 2010.