Leo Cronier v. Securitas Canada Ltd., 2015 HRTO 16

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leo Cronier

Applicant

-and-

Securitas Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman
Date: January 6, 2015
Citation: 2015 HRTO 16
Indexed as: Cronier v. Securitas Canada Ltd.

WRITTEN SUBMISSIONS

Leo Cronier, Applicant
Bradley Truax, Counsel

Securitas Canada Ltd., Respondent
Daniel McDonald, Counsel

background

1This Interim Decision deals with requests made by the applicant for production of documents, the removal of personal respondents and accommodation requests for his counsel.

2The applicant self-identifies as a gay man with a disability.

3The Application alleges discrimination with respect to employment because of sexual orientation, disability and association with a person identified by a prohibited ground of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

4The respondent is a company that provides security services. The applicant worked for the respondent from January 25, 2012 to October 28, 2013 as a guard responding to alarms from the respondent’s clients.

5The applicant’s employment was terminated. The applicant claims it is because the respondent’s managers were hostile to him because of his sexual orientation or his association with gay people. He also claims that the respondent did not accommodate his disability and used his medically-related absences from work as a pretext to fire him. The respondent denies this categorically. It says that the applicant was terminated because of a business-driven decision to restructure. When it came time to decide which employees to let go, the applicant was one of the ones chosen because of his relatively short service and a poor attendance record.

6The hearing of this Application is scheduled to begin on January 29, 2015.

removal of personal respondents

7The applicant has requested to remove as respondents two managers who were initially named as respondents. This request is granted on consent and the style of cause is amended accordingly.

production of documents

8The issue on these requests is the arguable relevance of the documents in question. The threshold of arguable relevance is quite low. As indicated in McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paragraphs 12-13, the party seeking production simply must demonstrate a nexus between the information or document sought and the facts or issues in dispute.

Voicemail message

9The applicant alleges that one of the indicators of the respondent’s anti-gay animus is that it acted on an anonymous tip, made by way of voicemail, that indicated that the applicant was out at a gay bar at a time when he claimed to be unable to report for work for medical reasons.

10The voicemail was the subject of discussion between the parties at a meeting on September 23, 2013. The applicant identified the tipster as a former partner of his.

11He asks that the respondent produce this recording. The respondent indicates that it no longer possesses the recording.

12The respondent cannot be ordered to produce a recording it no longer has. In any event, the dispute between the parties in relation to this item is not about the content of the recording. The respondent does not contest the applicant’s description of the content as set out in his pleadings. What is at issue is what action the respondent took as a result of receiving this message and why. The recording itself, even if it were available, would not shed light on this. This request is denied.

Copy of the applicant’s work schedule

13The applicant requests that the respondent produce the applicant’s complete work schedule, including shifts he worked when he was not scheduled to work. He argues that he needs this information in order to address the respondent’s claim that his absenteeism was a reason for terminating his employment.

14The respondent argues against disclosure on the ground that this information does not speak to the issue of his absenteeism.

15I agree with the respondent. What is in dispute is not how often the applicant was at work, but rather how often he was not at work and the reasons why. If, as the respondent claims, the absenteeism of the applicant was a problem, then the hearing will focus on how often the applicant was away and whether his absences were justified.

16The respondent has disclosed its record of the applicant’s absences in 2012 and 2013. The applicant has not explained in his request how a record of all the times that he was present at work speaks to the issue in dispute. For example, he has not asserted that the respondent’s record of the days he was away from work is not accurate. Absent any explanation from the applicant as to why the records he seeks have a bearing on the issues in dispute, I find that the record of when he was present at work is not arguably relevant. This request is denied.

Records of complaints about the applicant by his former partner

17The applicant’s former partner has a home alarm system at his house. It is administered by a company called Alarm Force. Alarm Force is a client of the respondent. When the alarm on a property owned by an Alarm Force client is triggered, the respondent’s employees are dispatched to the property.

18The applicant claims that he was dispatched to an alarm call at his former partner’s house, and his former partner then made an unfounded complaint about him to Alarm Force. He says that Alarm Force relayed this complaint to the respondent. The applicant says that his former partner was consistently harassing him. He says that the respondent knew of this pattern of harassment before the September 23, 2013 meeting.

19The respondent denies having received any such complaint. It says that the only knowledge it has of the applicant’s former partner and the breakup of their relationship comes from what the applicant volunteered at the September 23, 2013 meeting.

20The applicant requests an order that Alarm Force produce any communications or records of complaints about him made by his former partner.

21This request meets the test of arguable relevance insofar as the requested documents – if they exist – may show that the respondent knew about the applicant’s relationship with his former partner earlier than it claims in its Response to have had such knowledge. The question of what weight to assign to that fact – assuming that it can be established – is a matter for the decision-maker who hears this Application.

22The request is granted but the scope of disclosure is limited to any complaints that Alarm Force actually relayed to the respondent between January 25, 2012 and September 23, 2013.

Dispatch records

23The applicant requests that the respondent produce all records of him being dispatched to attend to calls at his former partner’s residence. He says that when he was dispatched to this address he would ask the respondent to re-assign him to another call and that this request was accommodated.

24The respondent has not disputed the applicant’s assertion on this point but argues that such records are not relevant.

25As is the case with the preceding production request, the only relevance I can see that these records have is to the question of whether, contrary to its assertion, the respondent was aware of the former partner’s behaviour towards the applicant before September 23, 2013. However, this brings it within the threshold of arguable relevance, as these records – if they exist – might assist the Tribunal in assessing credibility at the hearing.

26The request is granted but the scope of disclosure is limited to instances where the applicant was dispatched to the former partner’s address between January 25, 2012 and September 23, 2013, and includes any record of the applicant being re-assigned to another call at his request.

Records relating to restructuring

27The applicant argues that the respondent did not really decide to restructure its operations and that this was a pretext to mask a discriminatory decision to dismiss him. He requests records relating to the hiring and termination of employees at his former work location in the year following his termination.

28The respondent says that this request is overly broad and that it will lead the Tribunal into an irrelevant examination of the hiring and termination decisions it made after it restructured.

29This request clearly meets the threshold of arguable relevance, as the records speak to a fact in issue, which is whether there was a genuine restructuring or not. It is not overly broad insofar as its scope is limited to the applicant’s former work location over the course of a year. This request is granted.

accommodation requests

30The applicant requests that the Tribunal make two accommodations for his counsel in the hearing. One is that his counsel be allowed to use a LiveScribe pen, which takes an audio recording of the hearing as counsel makes notes. The other is that the hearing start each day after 12:30 p.m., rather than the usual 9:30 a.m. start time.

31The applicant has indicated that these requests are required because of a disability that his counsel has, but has not provided supporting documentation that explains why these accommodations are necessary.

32The respondent objects to both requests because of the lack of supporting information. In these circumstances, it states that the cost to it that is associated with proceeding with half-day hearings is unjustified. In relation to the audio recording of the hearing it speculates that the applicant is seeking to do this for some collateral and improper purpose.

33In dealing with a similar request (Hoffman v. Long Term Provincial Care Inc., 2014 HRTO 770), the Tribunal makes clear (at para. 17) that where an accommodation request engages the interests and has an impact on other parties to an application, there is a need for the Tribunal to assess the request not only with regard for the needs of the person requesting the accommodation, but with regard for its impact on the hearing process as a whole.

34I do not question that applicant’s counsel has a disability, but he has not explained how and why the disability necessitates the particular accommodations he is requesting. In an earlier communication to the Tribunal, which was not copied to the respondent, applicant’s counsel undertook to provide further information supporting the accommodation request should the Tribunal require it.

35The request is denied at this time. It is open to the applicant to renew this request. In doing so he should provide supporting medical documentation that explains why the particular accommodation requests are required or whether his counsel’s disability can be accommodated in other ways. The documentation need not include the diagnosis of his counsel’s disability.

order

36The personal respondents are removed as respondents and the style of cause is amended accordingly.

37Within ten days of the date of this Interim Decision, Alarm Force Inc. is directed to provide to the applicant and respondent copies of any communications between Alarm Force Inc. and Securitas Canada Ltd. between January 25, 2012 and September 23, 2013 that deal with customer complaints made to Alarm Force about the applicant.

38Within ten days of the date of this Interim Decision, the respondent is directed to provide the applicant with copies of any records that show the applicant was dispatched to respond to calls at the address of the applicant’s former partner between January 25, 2012 and September 23, 2013, including any records that show the applicant was re-assigned to a different call.

39Within ten days of the date of this Interim Decision, the respondent is directed to provide to the applicant a list that shows the position and level of all the employees who were hired or left the respondent’s employment at the applicant’s former work location in the period from October 28, 2013 to October 27, 2014.

40The applicant’s requests for a copy of the voicemail recording and a record of his attendance at work are denied.

41The applicant’s request for accommodations for his counsel are denied at this time.