Steven Ferguson v. Mitchell Plastics, a division of Ultra Manufacturing Ltd., 2015 HRTO 1722

Human Rights Tribunal of Ontario

B E T W E E N:

Steven Ferguson Applicant

-and-

Mitchell Plastics, a division of Ultra Manufacturing Ltd.‏ Respondent

INTERIM DECISION

Adjudicator: Colin Johnston Date: December 22, 2015 Citation: 2015 HRTO 1722 Indexed as: Ferguson v. Mitchell Plastics, a division of Ultra Manufacturing Ltd.

WRITTEN SUBMISSIONS

Steven Ferguson, Applicant No submissions

Mitchell Plastics, a division of Ultra Manufacturing Ltd.‏, Respondent Greg McGinnis, Counsel

Introduction

1This Interim Decision addresses the Request for Order During Proceedings filed by the respondent in which it sought production and particulars relating to the applicant’s efforts to mitigate his losses following his termination of employment.

2The Application alleges that the respondent discriminated in employment against the applicant on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19 when it failed to accommodate him and ultimately terminated his employment.

Respondent’s Request FOR PRODUCTION & PARTICULARS

3The respondent requested production and particulars of the following:

a. The applicant’s job search efforts following the termination of his employment, up to the date of the hearing;

b. The applicant’s income from all sources following the termination of his employment, up to the date of the hearing, including without limitation of his 2014 personal tax return and CRA Notice of Assessment;

c. The applicant’s employment with “Rimowa” in November or December 2014, including without limitation his offer of employment, pay stubs, benefit booklet, and any other correspondence, emails, memoranda, or documents from Rimowa;

d. The applicant’s tree service business “Ayr Affordable Tree Service”;

e. The applicant’s leave of absence and disability claim from “Rimowa”, including the insurer’s disability file, and all records of income received from the disability insurer.

4The respondent submitted that the applicant has sought compensation for lost wages and has an obligation to mitigate his losses.

5The applicant did not formally respond to the respondent’s production and particulars request but provided some further material to the respondent regarding his efforts to mitigate.

6At 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. The Tribunal in McKay, explained the analytical approach to assessing what is arguably relevant, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law. 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.

7The respondent’s request for documents regarding the applicant’s mitigation efforts following his termination of employment is relevant to the applicant’s claim for lost income including lost benefits. For this reason, I find that the applicant must provide to the respondent all documents and particulars regarding the applicant’s mitigation efforts including:

a) The applicant’s job search efforts following the termination of his employment (September 2014);

b) The applicant’s income from all sources following the termination of his employment (September 2014) including income from:

i. the applicant’s employment with “Rimowa”;

ii. the applicant’s tree service business “Ayr Affordable Tree Service”;

iii. any disability benefits received from Rimowa’s disability insurer;

c) The applicant’s 2014 income tax return including any notice of assessment for the 2014 tax year;

d) The applicant’s offer of employment from “Rimowa” including any pay stubs and benefit booklets received from Rimowa.

8I am not prepared to order the applicant to produce the disability insurance file requested by the respondent. It is my view, that this request raises privacy issues regarding the disclosure of personal medical information and is not necessary to demonstrate the applicant’s mitigation efforts.

DIRECTION

9The Tribunal directs the applicant to produce to the respondent and file with the Tribunal all documents and particulars regarding:

a) The applicant’s job search efforts following the termination of his employment in September 2014;

b) The applicant’s income from all sources following the termination of his employment (September 2014) including income from:

i. the applicant’s employment with “Rimowa”;

ii. the applicant’s tree service business “Ayr Affordable Tree Service”;

iii. any disability benefits received from Rimowa’s disability insurer;

c) The applicant’s 2014 income tax return including any notice of assessment for the 2014 tax year;

d) The applicant’s offer of employment from “Rimowa” including any pay stubs and benefit booklets from Rimowa.

10These documents should be produced no later than January 6, 2016.