Ftaich v. Conseil Scolaire Viamonde, 2015 HRTO 821

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adel Ftaich

Applicant

-and-

Conseil Scolaire Viamonde and Marc Frenette

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: June 18, 2015

Citation: 2015 HRTO 821

Indexed as: Ftaich v. Conseil Scolaire Viamonde

WRITTEN SUBMISSIONS

Conseil Scolaire Viamonde and Marc Frenette, Respondents

Margot Blight, Counsel

1This Interim Decision addresses a Request for Order During Proceedings (“RFOP”) filed by the respondents in which they sought production of certain materials from the applicant.

2In his Application, the applicant alleged that the respondents discriminated against him based on his ancestry, place of origin and disability contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Among other things, the applicant alleged that he was subjected to a series of demeaning and discriminatory comments by his supervisor, the personal respondent. He also alleged that the organizational respondent violated the Code by failing to accommodate his disability and suspending him indefinitely.

3One of the allegations in the Application relates to the suspension imposed upon the applicant. The organizational respondent placed the applicant on an administrative suspension for refusing to provide copies of airline tickets to support his claims relating to the extension of a trip he took to the Philippines. The respondent found that the medical certificate submitted by the applicant was insufficient and therefore asked the applicant to produce his airline tickets to support his claim that he changed his flight after he got sick. The applicant refused to produce the tickets and the respondent suspended him. In his Application, the applicant claimed that the suspension imposed upon him was discriminatory.

4The respondents request production of any document relating to the applicant’s trip to the Philippines in March/April 2012, including his airline ticket or tickets and any document relating to his change of reservations for the trip and/or the ticket he bought. The respondents submit that the documents are relevant to show that their actions toward the applicant were justified.

5The respondents note that they made this same production request in the arbitration proceeding dealing with a grievance filed by the applicant to challenge his suspension. The arbitrator granted the organizational respondent’s production request and ordered the applicant to produce the airline tickets. The applicant failed to comply with the arbitrator’s production order. The arbitrator ended up dismissing the applicant’s grievance as an abuse of process due to his failure to comply with the arbitrator’s production order and his decision to leave the arbitration hearing without explanation.

6Under the Tribunal’s Rules of Procedure, the applicant’s response to the RFOP was due within 14 days after the RFOP was delivered to the applicant. The applicant did not respond to the RFOP within this time period. The Tribunal’s Assistant Registrar followed up with the applicant by e-mail on June 1, 2015, advising him to respond to the RFOP by June 8, 2015. On June 9, 2015, the applicant replied to the Assistant Registrar taking issue with the Tribunal’s handling of his Application. In his letter to the Assistant Registrar, the applicant stated that his witnesses would be testifying to support his claims that he was intentionally discriminated against and harassed by the respondents. He also stated that he was willing to call as a witness the travel agent who booked his flights.

ANALYSIS

7It is well-established that a party seeking production of documents must demonstrate that the information is “arguably relevant” to the proceeding. The “arguable relevance” threshold has been described as “not a particularly high bar”. See Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at paragraph 8, and the cases cited therein. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after material(s) and the subject-matter of the application. The Tribunal in McKay v. Toronto Police Service Board, 2009 HRTO 1220 explained the analytical approach to assessing “arguable relevance” as follows, 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. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production, may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

8Applying these principles, I find that the documents sought by the respondents are arguably relevant and must be produced. In my view, the documents will shed light on the reasonableness of the respondents’ actions in suspending the applicant. As such, the requested information may provide an inferential link to either support or refute the respondents’ line of defence. While it is open to the applicant to call the travel agent he proposes to call as a witness, the documents set out above are arguably relevant and must be produced.

9Any decision as to the actual relevance of the documents and their admissibility as evidence will be made by the adjudicator hearing this case.

ORDERS

10For the reasons set out above, the applicant is ordered to produce to the respondent and file with the Tribunal any and all documents relating to the travel arrangements for his trip to the Philippines in March/April 2012 including his airline ticket or tickets and any document relating to his change of reservations for the trip and/or the ticket he bought. He must produce these documents to the respondent and file them with the Tribunal within 7 days of the date of this Interim Decision.

11I note that the applicant has demonstrated resistance to producing such documents in the past, including in the grievance arbitration that preceded the hearing of this Application. The applicant should take note that parties are required to comply with the Tribunal’s orders and directions, even if they disagree with them. Where an applicant refuses to follow Tribunal directions, the Application may be dismissed as an abuse of process. See for example E.E. v. Conseil des écoles catholiques de langue française du Centre-Est, 2011 HRTO 2132 Briggs v. Niagara Falls (City), 2010 HRTO 2244; and Okunbor v. Hopewell Logistics, 2009 HRTO 2124.

12I note that the Notice of Hearing issued in this case set May 22, 2015 as the date by which the parties were required to disclose to each other, and file with the Tribunal, a list of documents they intend to rely upon at the hearing as well as a witness statement for each witness they intend to call to testify at the hearing. Neither party has done so.

13The Tribunal will address the next steps in this Application once the applicant complies with this Interim Decision or once the expiry of the time to do so has passed.