Horner v. Accenture Business Services for Utilities, 2015 HRTO 1583

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Horner

Applicant

-and-

Accenture Business Services for Utilities

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: November 23, 2015

Citation: 2015 HRTO 1583

Indexed as: Horner v. Accenture Business Services for Utilities

WRITTEN SUBMISSIONS

David Horner, Applicant

Self-represented

Accenture Business Services for Utilities, Respondent

Anne Gallop, Counsel

Simon Horner, Proposed Intervenor

Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of age and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2On August 24, 2015, the Tribunal issued a Notice of Preliminary Hearing for December 10, 2015. The issues to be addressed by the parties at the Preliminary Hearing are whether the Application should be dismissed in whole or in part on the basis that the applicant has signed a full and final release with respect to the same subject matter as that of the Application; or on the basis that the Tribunal does not have jurisdiction to hear the Application as it was filed more than one year after the date of the last alleged incident of discrimination.

Request for Production

3On October 15, 2015, the applicant filed a Request for Production of numerous documents. The respondent opposed this Request on the grounds that most of the documents requested are not relevant to the issues to be determined at the Preliminary Hearing and therefore the Request is premature.

Request to Intervene

4The applicant's son filed a Request to Intervene on October 3, 2015. The applicant's son indicates that he wants to address issues regarding the impact of his father's employment termination on him personally; whether Christian character is recognized by institutions; and whether he was the reason for his father's termination. He also indicates that he wants to support his father in this Application.

5The respondent opposes this Request on the basis that the proposed intervenor has no independent knowledge of the issues raised by the applicant and, contrary to Rule 11.3, he failed to set out the facts upon which he intends to rely. The respondent also submits that the intervener can provide no assistance to the Tribunal beyond what can be provided by the applicant and that granting the Request to Intervene will unduly delay the Application.

DECISION AND ANALYSIS

Request for Production

6The 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 connection between the sought-after materials and the subject-matter of the Application. A connection 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.

7However, the Tribunal has exercised its discretion to allow for early production of documents only in exceptional circumstances such as when production is necessary for the respondent to file a Response. See Hashi v. Toronto Transit Commission, 2012 HRTO 869.

8The applicant submits that he requires these documents to be able to prepare for and make submissions at the Preliminary Hearing.

9At the Preliminary Hearing, the Tribunal may consider section 45.1 which the Tribunal has interpreted as contemplating a two-step analysis. First, it must be determined whether there was a prior proceeding that dealt with the events and issues raised in this Application. If the answer to that question is yes, then the second stage of the analysis is whether or not the substance of this Application has been appropriately dealt with. See Campbell v. Toronto District School Board, 2008 HRTO 62.

10In addition, the Tribunal will consider whether the applicant has a good faith reason for his delay in filing the Application or whether he has established that the alleged incidents of discrimination should be considered a series of incidents in which the final alleged incident of discrimination occurred within one-year of the date the Application was filed.

11The documents requested relate primarily to the applicant's performance while he was the respondent's employee; the termination and rehiring of the applicant; events that involved other human rights complaints while he was employed; and potential patterns of terminating and rehiring by the respondent. Although these documents may be relevant to the issues raised by the applicant in the Application, they do not have any apparent relevance to the issues that will be addressed on the Preliminary Hearing.

12The first documents the applicant has requested are:

All documents related to the Applicant's termination including but not limited to the initial discussion related to the consideration of the termination, the rationale for the termination and the timing of the same, discussions around reasons for determining the compensation terms, discussions around all of the negotiated contract and non-contract items [related to the termination I expect, but not limited to relevance to the larger questions at play], final and post signing discussion [possibly as they relate to pension, payroll and benefit adjustments, but not limited to these] and any correspondence related to the possibility of future reemployment with Accenture preceding or coincident with the termination negotiations.

13The respondent has agreed to provide all documents related to the negotiation of the full and final release. The respondent submits that the other documents are not relevant to the issues to be addressed at the Preliminary Hearing.

14I agree with the respondent. Only those documents that are relevant to the substance and terms of the "Release and Indemnity" signed by the applicant on April 24, 2014 need to be provided to the applicant and filed with the Tribunal by the respondent.

15All other documents that the applicant has outlined in the Request are not relevant to the issues to be addressed at the Preliminary Hearing. The other documents listed by the applicant may be arguable relevant to the broader issues raised in the Application and the parties will be expected to adhere to the disclosure requirements and timelines under Rule 16 that will be set out in the Notice of Hearing of the merits, should such a Notice be sent out to the parties in the future.

16Other than the documents described in paragraph 13 above, which the respondent has agreed to provide, it is premature to order disclosure of the documents outlined in the applicant's Request. The applicant has failed to establish the exceptional circumstances that must be present in order for the Tribunal to order that the other documents be disclosed earlier.

Request to Intervene

17In accordance with Rule 11 of the Tribunal's Rules of Procedure, the Tribunal may allow a request to intervene on any terms the Tribunal decides are appropriate. The Tribunal has set out a number of factors to consider when assessing a request for intervention:

1. Whether the intervenor has a significant interest or special contribution to make on the issues;

2. Whether the intervenor is likely to provide assistance to the Tribunal that will not otherwise be provided;

3. Whether the intervention will unduly delay, disrupt or prejudice the determination of the rights of the parties; and

4. If intervention is appropriate, should conditions be placed on the intervention?

See D.R. v. Upper Grand District School Board, 2011 HRTO 1187 and Carasco v. University of Windsor, 2011 HRTO 630.

18While the Tribunal has a broad discretion to grant intervention, I do not find that this is an appropriate case to grant intervention to the applicant's son.

19It would appear that the applicant's son seeks intervention because he is alleging that he is also a victim of discrimination and that, due to the fact that he is a dependent of the applicant, he may somehow be responsible for his father's termination from his employment with the respondent.

20Given the responses provided in the Form 5, it appears that the applicant's son is seeking to become another applicant as opposed to an intervenor. This is not a basis on which to grant intervention.

21The applicant's son has not identified any assistance that he will provide the Tribunal which cannot be provided by the applicant either through his own evidence or other witnesses, including the applicant's son, should he be able to give relevant evidence related to the merits of the Application if and when there is a hearing on the merits.

order

22The respondent shall share with the applicant and file with the Tribunal all documents related to the negotiation of the full and final release signed by the applicant on April 24, 2015. These documents must be shared and filed within 14 days prior to the date of the Preliminary Hearing. The applicant's request for production of the other documents listed in the Request is denied.

23The Request to Intervene is denied.