England v. Kitchener (City), 2015 HRTO 1640

Human Rights Tribunal of Ontario

B E T W E E N:

Gary England Applicant

-and-

Corporation of The City of Kitchener Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: December 3, 2015 Citation: 2015 HRTO 1640 Indexed as: England v. Kitchener (City)

WRITTEN SUBMISSIONS

Gary England, Applicant Self-represented

The Corporation of the City of Kitchener, Respondent Matthew Mihailovich, Counsel

Introduction

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

2The applicant alleges that the respondent discriminated against him because of his disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleges that his disability and/or requests for accommodation were not met and that he was passed over for more senior positions by the respondent because of his disability and age.

3The Application is scheduled to be heard on March 29 and 30, 2016.

PRODUCTION REQUEST

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

a. All correspondence and emails from September 2013 to October 2015 from [named individual] Director FM to City of Kitchener Human Resources Department [named individuals] as pertaining to the applicant Gary England.

b. All correspondence and emails from September 2013 to October 2015 from [named individual] to City of Kitchener Human Resources Department [named individuals] as pertaining to the applicant Gary England.

c. All correspondence and email from September 2013 to October 2015 from [named individual] to the City of Kitchener and Human Resources Department [named individuals] as pertaining to the applicant Gary England.

5The applicant states that he needs these documents to prove the respondent knew that Sun Life found that he could only do a sedentary job and to prove the discrimination.

6The respondent opposed the applicant’s request. The respondent submits that it has provided two volumes of documents that include emails and other correspondence that are arguably relevant to the allegations made in the Application.

7In addition, the respondent submits that the documents requested are not relevant to the issues to be determined in this Application; the applicant’s request is overbroad; it is an exercise of a “fishing expedition”; and the request in purely speculative.

Analysis

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 link between the materials that are sought and the allegations made in the application. A link may be established if the information requested could be used 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.

9The issues to be determined in this Application are whether the respondent failed to accommodate the applicant’s disability-related needs and/or whether he was not considered for jobs to which he had applied because of his age or disability. I find that the applicant has not demonstrated how the documents requested are relevant to these issues.

10In addition, the request is overbroad and not sufficiently particularized. The applicant has failed to indicate what particular correspondence, beyond that which has been disclosed by the respondent, should be produced. Due to the lack of particularization, the relevance of the documents has not been established.

11The fact that there may be some correspondence that has not been disclosed to the applicant that could be relevant to the issues to be determined does not warrant an order to disclose all of what could be a very large volume of materials. I agree with the respondent that this would be allowing the applicant to engage in a “fishing expedition” based on what appears to be speculation about what could be in these materials.

12If the applicant believes that e-mails or other correspondence exists that is arguably relevant to the issues raised that the respondent has not produced, he must file a more particularized production request that identifies particular e-mails, or categories of e-mails, or details the other particular correspondence he is seeking. He must also explain why this correspondence is arguably relevant to the issues raised in his Application.

13If the applicant does file a new production request, he must do so well in advance of February 16, 2016 which is the date by which the parties are to exchange and file their witness statements and the documents that they intend to rely on at the hearing. It is necessary to ensure time for the Tribunal to rule upon this subsequent request and time for the respondent to comply with any production order if one were to be made by the Tribunal.

ORDER

14For the reasons set out above, the applicant’s production request is denied.