Mark Pelham v. Ideal Industries (Canada) Corp., 2016 HRTO 1366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Pelham

Applicant

-and-

Ideal Industries (Canada) Corp.

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: October 21, 2016

Citation: 2016 HRTO 1366

Indexed as: Pelham v. Ideal Industries (Canada) Corp.

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that his employment with the respondent was terminated because of disability. The respondent denies the allegation and pleads that the applicant was terminated because he did not meet the performance standards required by the respondent.

2The hearing in this case is scheduled for November 17 and 18, 2016, in Toronto.

3This Interim Decision deals with a Request for Order During Proceedings (“Request”) filed by the applicant seeking production of materials from the respondent and certain third parties.

4The applicant seeks production of the following materials from the respondent:

a. All records, whether paper or electronic, relating to the employment and cessation of the applicant, Mr. B, Mr. H, and Mr. C, including without limitation, organizational charts, floor diagrams, job descriptions, job postings, all employee status change forms, payroll records, records of employment, termination letters, and all communications of the respondent regarding the aforementioned employees;

b. All records, whether paper or electronic, relating to the hiring or transfer of any other employee the respondent engaged for the afternoon shift following September 10, 2014, and prior to the commencement of the Application, including, without limitation, organizational charts, floor diagrams, job descriptions, job postings, all employee status change forms, payroll records, records of employment, termination letters, and all communications of the respondent regarding such employees;

c. A list of privileged documents “as well as explanation for those redacted documents previously disclosed”.

d. All records in the possession of MS Ltd. and QTR Inc. relating to the respondent from September 10, 2014 to the date of the application.

5With respect to the requests in paragraphs a. and b., I am not satisfied that, to the extent that such material has not already been provided, these additional materials are arguably relevant to the issues in dispute. In my view, the requests as framed are overbroad and invasive and even if granted are extremely unlikely to reveal anything helpful to the adjudication of the dispute.

6With respect to the request in paragraph c., it would appear that the respondent has provided a list of privileged documents. As for an explanation, the respondent has indicated that the documents have been redacted to protect other employees of the respondent who are not in any way relevant to this proceeding and because the redacted information was totally irrelevant and considered confidential by the respondent. The applicant points to no reason to breach the confidentiality in the circumstances.

7The request in paragraph d. is denied. The applicant has not given any reason for the third party disclosure order other than it “is necessary to ensure a fair hearing.” In my view, this bald assertion cannot justify an order for third party disclosure.

8In the Request, the applicant raised concerns that the respondent “appears to be asserting a defence not pleaded”. In my view, if it is not pleaded it cannot be raised as a defence. If there is a defence not presently pleaded, it would be incumbent on the respondent to make a request to amend the response.

9The Request is denied.