HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Watson
Applicant
-and-
Culligan Water Conditioning (Barrie) Ltd.
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Watson v. Culling Water Conditioning (Barrie) Ltd.
WRITTEN SUBMISSIONS
William Watson, Applicant
Joseph Tascona, Counsel
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. The applicant worked for the respondent as a Commercial Delivery Driver. There is no dispute that the applicant was unable to perform the duties of this position for a period of time following a workplace injury. The applicant alleges that the respondent replaced him and dismissed him when he sought to return to his pre-injury position for reasons related to disability.
2In a Case Assessment Direction dated January 14, 2016, the Tribunal declined to address the applicant’s request for disclosure, filed on October 22, 2015, because it appeared that the respondent had addresses all of the applicants inquiries regarding production and had produced or undertaken to produce several documents.
3By letter dated February 22, 2016, the applicant requested that the Tribunal revisit his request for production because the respondent did not produce certain documents that would be relevant to the calculation of the applicant’s wage loss. Specifically, the applicant seeks the pay statements of Steve Burton, the person alleged to have replaced the applicant, for the period of May 26, 2014 to December 5, 2014 and Mr. Burton’s time sheets and pay statements for the period of December 6, 2014 to the present. The applicant submitted that the respondent used Mr. Burton’s information, apparently as a proxy, for calculating the applicant’s pay. The materials before me indicate that this calculation was disclosed to the applicant. The applicant submitted that it requires these documents to confirm the respondent’s calculations and also to calculate the applicant’s wage loss. The respondent did not make submissions directly to the Tribunal, but did copy the Tribunal on a letter to applicant’s counsel, dated February 23, 2016, responding to the applicant’s request. The respondent stated that it believed it had provided Mr. Burton’s pay statements for the May 26, 2014 to December 5, 2014 period and would respond shortly regarding the balance of the request.
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.
5The respondent appears to have used Mr. Burton’s pay related information to make calculations regarding the applicant’s pay and the respondent appears to have disclosed these calculations to the applicant. In my view, the documents the applicant requests are arguably relevant to the issue of the applicant’s wage loss, if any, assuming the Tribunal finds the respondent to have breached his Code rights, and should be disclosed.
6The parties are reminded of Rule 3.3 of the Tribunal’s Rules of Procedure, which states as follows:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
7The Tribunal orders as follows
By the end of business on March 18, 2016, the respondent shall produce to the applicant copies of Steve Burton’s pay statements for the period of May 26, 2014 to December 5, 2014; and,
By the end of business on March 18, 2016, the respondent shall produce to the applicant copies of Steve Burton’s pay statements and time sheets for the period of December 6, 2014 to the date of disclosure.
8I am not seized.
Dated at Toronto, this 9th day of March, 2016.
“Signed by”
Douglas Sanderson
Vice-chair