Shirley v. Can-Am Logistics Inc., 2015 HRTO 402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Othniel Wainwright Shirley

Applicant

-and-

Can-Am Logistics Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: March 27, 2015 Citation: 2015 HRTO 402 Indexed As: Shirley v. Can-Am Logistics Inc.

WRITTEN SUBMISSIONS

Can-Am Logistics Inc., Respondent

Thomas A. Stefanik, Counsel

1Counsel for the respondent filed a Request for an Order During Proceedings (Form 10) for production of the applicant’s employment file from Randstad Canada (“Randstad”), the employment agency that employed the applicant.

2Counsel for the respondent advises that he served this Request for production on Randstad, and that Randstad did not oppose the order being requested. In any event Randstad did not file a Response to the Request for production and the time for so doing has passed. Likewise, the applicant did not file a Response.

3In its Request, the respondent notes that it is not the applicant’s employer and, therefore, has no employment file for him. It attempted to get the applicant’s consent for release of this file from Randstad prior to filing the Request for production, but the applicant did not respond to its correspondence.

4In light of the issues in this matter, it seems appropriate that the respondent have access to that portion of the applicant’s file that relates to his employment at the respondent. The request for the applicant’s entire personnel or employment file seems overly broad at this stage. If the respondent finds that the documents produced are insufficient, then it can bring a further request.

5In addition, the Tribunal sent out a Notice of Hearing on November 10, 2014 setting out the parties’ obligations under Rules 16 and 17. Specifically, the Tribunal notified the parties that they were obliged to provide the following things to one another and to the Tribunal by no later than March 17, 2015:

a. a list of the witnesses they intend to call at the hearing of the Application;

b. witness statements describing what the witnesses will say when they testify; and

c. copies of the documents they intend to rely upon at the hearing.

6The respondent has advised that it cannot comply with the requirement that it produce copies of the documents on which it intends to rely, or a list of the witnesses, until it receives the employment file from Randstad. It will be required to produce this material by April 10, 2015.

7The applicant has produced a number of documents, including transcripts of what appear to be audio recordings. I would note that he appears to have not produced a copy of the audio recordings on which these transcripts are based. These must also be produced, without editing. The applicant must also produce his witness list and statements as set out in the Notice of Hearing.

8The applicant is reminded that he must also submit a witness statement for himself, assuming he intends to testify at the hearing. However, if the applicant only intends to testify about the facts already contained in his Application, it is sufficient for him to confirm this in writing by the date set out below.

order

9The Tribunal orders the following:

a. By April 2, 2015, Randstad Canada will produce to the respondent a copy of that portion of the applicant’s personnel/employment file that relates to his assignment/period of employment with the respondent.

b. By April 10, 2015, the respondent shall provide to the applicant and the Tribunal, its arguably relevant documents, the documents on which it intends to rely, a list of its witnesses and witness statements for each witness.

c. By April 7, 2015, the applicant shall provide to the respondent and the Tribunal an unedited copy of the audio recordings on which the transcripts included in his production are based, as well as a witness list and witness statements for each individual on his list. If the applicant is testifying on his own behalf, he shall, at minimum confirm this in writing by April 7, 2015.

10The Tribunal notes the lateness at which it is addressing the respondent’s Request, which was filed in a timely manner. If the respondent or third party is unable to meet the deadlines set out above, the Tribunal will grant the necessary extensions.