HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeremy Tullett Applicant
-and-
The Governing Council of the Salvation Army in Canada o/a The Salvation Army National Recycling Operations Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson Date: August 30, 2016 Citation: 2016 HRTO 1153 Indexed as: Tullett v. The Salvation Army National Recycling Operations
WRITTEN SUBMISSIONS
Jeremy Tullett, Applicant Self-represented
The Governing Council of the Salvation Army in Canada o/a The Salvation Army National Recycling OPS, Respondent No one appearing
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability and reprisal. In summary, the applicant alleges that the respondent discontinued accommodations related to his disability and, amongst other things, treated him differently regarding the requirement to complete Accident/Incident Reports. The respondent states that the applicant did not require the accommodation he claims was discontinued and denied any violation of the Code.
2This Interim Decision addresses a Request for an Order During Proceedings (the “Request”) the applicant filed on August 11, 2016 and also addresses the fact that the respondent has not complied with its pre-hearing disclosure obligations, pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure (the “Rules”).
The Request
3In the Request, the applicant seeks production of all e-mail messages between Matthew Brown and Human Resources (specifically Amy Gonsalves) and copied to the District Manager, Maria Guayacan concerning the applicant, his use of the Accident/Incident Reporting form and how this form was used. The applicant states that these messages were written and received between approximately November 1, 2014 and March 31, 2015. The applicant submitted that these messages show that the respondent singled him out in order to withdraw his ongoing accommodation. The respondent did not file a response to the Request and the time for doing so has passed.
Analysis and Decision
4At 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. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. The fact that a document may be arguably relevant does not imply that the document will actually be relevant or admissible in a hearing.
5In this case, the applicant alleges that he was treated differently with respect to the use of Accident/Incident Reporting forms with a view to denying him accommodation for his disability. In my view, any e-mail messages between the respondent’s personnel regarding the applicant and his use of this form are arguably relevant and should be disclosed.
Pre-Hearing Disclosure
6This Interim Decision also alerts the respondents to the fact that it has failed to comply with Rules 16 and 17 of the HRTO’s Rules of Procedure regarding pre-hearing disclosure of documents and witnesses.
7As the Tribunal notified the parties in the Notice of Hearing, dated March 8, 2016 in this matter, under Rules 16 and 17 of the HRTO’s Rules of Procedure, the parties were obliged to provide the following things to one another and to the Tribunal by no later than August 19, 2016.
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.
8As of the date of this Interim Decision, the respondent has not complied with its obligations regarding the exchange of documents and witness statements.
9There are serious consequences for this case if the parties do not comply with their obligations under the Tribunal’s Rules, as set out below.
Order
10The Tribunal orders as follows:
By no later than September 14, 2016 the respondent shall produce to the applicant all e-mail messages in its possession concerning the applicant, his use of the Accident/Incident Reporting form and how this form was used that were sent between November 1, 2014 and March 31, 2015;
By no later than September 14, 2016, the respondent must deliver to the applicant and file with the Tribunal the documents it intends to rely upon at the hearing, a list of its witnesses and a brief statement describing what its witnesses will say when they testify. If the respondent does not provide the above-noted materials by September 14, 2016, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondent to call any witnesses or present any documentary evidence at the hearing.
Dated at Toronto, this 30th day of August, 2016.
“Signed By”
Douglas Sanderson Vice-chair