Grayer v. Caesar Windsor (Windsor Casino Limited), 2016 HRTO 337

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isaiah Grayer Applicant

-and-

Caesar Windsor (Windsor Casino Limited)‏ Respondent

INTERIM DECISION

Adjudicator: Colin Johnston Date: March 15, 2016 Citation: 2016 HRTO 337 Indexed as: Grayer v. Caesar Windsor (Windsor Casino Limited)

WRITTEN SUBMISSIONS

Isaiah Kevin Nathaniel Grayer, Applicant Self-represented

Caesar Windsor (Windsor Casino Limited)‏, Respondent Michael A. Wills, Counsel

Introduction

1This Interim Decision addresses the Request for Order During Proceedings (“RFOP”) filed by the applicant on February 3, 2016. The applicant seeks production of information, which relates to an incident, which took place at the respondent’s Casino on August 25, 2015 and forms the basis of his complaint.

2The Application alleges that the respondent discriminated against the applicant on the basis of race, colour, ancestry and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19 with respect to the provision of services, when certain racial comments were made to him by a Casino dealer.

APPLICATION’S REQUEST FOR PRODUCTION

3The applicant requests production of the following:

a. Security video of the table he was playing at on August 25, 2015. More specifically, he is seeking footage beginning at approximately 2:30 p.m. (when the dealor S.B. arrived at the table) to the time when the applicant is seen leaving the table.

b. Transcript of telephone call that the applicant placed to the respondent between 3:11 p.m. and 3.17 p.m. and during which he spoke to Casino representative, G.W. about the incident.

c. Copies of any, and all, incident reports made against the dealer S.B., which may demonstrate a pattern of behavior.

4The applicant submits that all of the information requested is arguably relevant to the allegations raised in his Application.

5In its response to the RFOP, the respondent acknowledges that the security video is arguably relevant but raises privacy concerns regarding other members of the public captured on the video tape.

6The respondent proposes the following conditions be imposed as part of any production order regarding the security video:

i. That the applicant be permitted to attend the office of the respondent’s law firm to review the surveillance tape for the times and date in question either alone or with a legal representative. A representative of the respondent’s law firm will remain in the room during the viewing to ensure custody and control of the video.

ii. The respondent will make the video available for viewing at the hearing.

7In its response, the respondent makes no comment regarding the other two items requested by the applicant.

8Beginning with the request for production of the security video, I agree that the video is arguably relevant, as it captures the actual events in dispute in this case. As to the privacy concerns raised by the respondent, I am not convinced that there are serious privacy issues to protect in this case with respect to the images of other patrons being captured on the security video. Nevertheless, the respondent’s proposal to place certain conditions around production of the video does not restrict access to the video nor does it seek to restrict its use in the proceeding. Rather, it is simply an attempt to control the dissemination of the video. For that reason, I agree that the limits proposed are reasonable in the circumstances.

9To that end, I note the comments made by the Tribunal in, Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at paragraph 10:

The Tribunal is also sensitive to privacy issues, particularly in relation to the production of medical records. Even where such records are arguably relevant, compelling privacy interests can be protected through such techniques as limiting the documents ordered to be produced, restricting the individuals who may view the documents, or ordering production to the Tribunal for inspection or redaction before disclosure: see, for instance, McEwan v. Commercial Bakeries Corporation, 2004 HRTO 13. The Tribunal may also order production without screening. It is, of course, understood that parties may not use material disclosed to them through the Tribunal’s processes for purposes other than its proceedings.

10As to the transcript of the telephone call to Casino representative G.W., I agree that if such a transcript exists, it is arguably relevant to the issues in dispute in this case. In the Application, the applicant submits that when he spoke to Casino representative, G.W. on the phone he explained the use of the term “monkey” in the gambling community. The applicant felt the response was disrespectful. The respondent denies that any of its representatives were disrespectful to the applicant. A transcript of the conversation (should one exist) would shed light on this dispute.

11As to the request for other incident reports against the dealer S.B., this information is only arguably relevant if it involves prior incidents of inappropriate comments made to patrons or staff at the respondent’s Casino. The applicant is not entitled to a carte blanche review of S.B.’s employment file. If there are prior complaints of the nature described above then the respondent should produce them, but is directed to redact the names of any complainants or witnesses named in those documents, in order to protect the privacy of those individuals, at this stage in the process.

DIRECTION

12The Tribunal directs the respondent to produce to the applicant the following material:

i. Security video of the interaction between the applicant and dealer S.B. on August 25, 2015, will be made available for the applicant’s review. The applicant shall be permitted to attend the office of the respondent’s law firm (either alone or with a legal representative) at a mutually agreeable time to review the surveillance video. A representative of the respondent’s law firm may remain in the room during the viewing to ensure custody and control of the video. The respondent will ensure that the video is available for viewing at the hearing scheduled on April 19, 2016 and any subsequent hearing dates, thereafter.

ii. Transcript of the telephone call that the applicant placed to the respondent on August 25, 2015 when he spoke to Casino representative, G.W., should such transcript or recording exist.

iii. Copies of any, and all, incident reports made against the dealer S.B., involving complaints about inappropriate comments made to patrons or staff at the respondent’s Casino, should they exist. The respondent should redact the names of any complainants or witnesses named in those documents.

13The documents shall be produced by no later than March 25, 2016. The process for reviewing the security video should be completed no later than April 8, 2016.