HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aftab Ahmed
Applicant
-and-
Magellan Aerospace Corporation
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Ahmed v. Magellan Aerospace Corporation
WRITTEN SUBMISSIONS
Aftab Ahmed, Applicant
David Baker, Counsel
Magellan Aerospace Corporation, Respondent
Martin Addario, 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 race, colour, place of origin, place of origin, citizenship, ethnic origin and reprisal. The hearing of this matter is scheduled for April 26 and 27, 2016.
Background
2The applicant identifies himself as a member of a visible minority group and a dual citizen of Bangledesh and Canada. The applicant states that he was born in Bangledesh and emigrated to Canada in 1988 at the age of 34. The applicant is a mechanical engineer and began employment with the respondent in or about 1988 or 1989. The applicant alleges that throughout his employment with the respondent he has been subject to discriminatory treatment on the grounds of race, colour, citizenship, and/or place of origin or ethnic origin, contrary to the Code. The applicant states that this discrimination has manifested in several forms, including questioning of his credentials, undervaluing his contributions, denial of responsibilities and opportunities, assignment of less desirable tasks, denial of resources, differential designations, and unfair performance evaluations. The applicant states that in February 2014, he complained to the respondent about the discriminatory treatment he received throughout his career. The respondent undertook to investigate his complaint and retained a third party investigator to conduct the investigation. The applicant states that the investigation largely corroborated his complaint, but alleges that the investigation and outcome of the investigation was deficient in a number of respects. The applicant states that he has been subject to reprisals since he filed his complaint. The respondent denies that it engaged in systemic discrimination against its employees because of race, ethnic origin, place of origin, colour or citizenship. The respondent states that it took all reasonable and necessary steps to investigate the applicant’s complaint and acted immediately to implement the recommendations of the investigator and the applicant’s requested remedies.
3The respondent identified several arguably relevant documents that it asserts are controlled goods as defined in the Defence Production Act, RSC, 1985, c. D-1 (“DPA”). The respondent states that it has withheld production of these documents until the applicant’s counsel has been authorized to receive the documents, pursuant to the Controlled Goods Regulations, SOR/2001-32.
4By e-mail message dated March 14, 2016, the Tribunal granted the parties’ request to extend the deadline for compliance with Rules 16.2, 16.3 and 17 of the Tribunal’s Rules of Procedure (the “Rules”) to March 21, 2016.
5This Interim Decision addresses three Requests for an Order During Proceedings filed by the applicant, two on February 16, 2016 and the third on March 7, 2016. The respondent applied to each of these requests. All of these requests concern the issue of the arguably relevant documents withheld by the respondent.
Directions regarding the DPA
6In one of the requests filed on February 16, 2016, the applicant takes the position that the DPA does not apply to all of the arguably relevant documents the respondent has withheld, but states that his counsel is prepared to apply for authorization to review the documents. The applicant submitted that he lacks sufficient information to further assert his position regarding the applicability of the DPA. The applicant also submitted that the operation of the DPA raises issues for the Tribunal regarding its review, maintenance of records and rendering a decision on the merits in this matter. The applicant submitted that section 1.1 of the Controlled Goods Regulation exempts Tribunal adjudicators from the restrictions of the DPA, but that there is no exemption for Tribunal staff or to a decision of the Tribunal. The applicant therefore requested direction about how it should proceed in order to receive full disclosure and for the Tribunal to perform its functions with respect to this Application.
7The respondent submitted, and I agree, that section 36 of the DPA and section 1.1 of the Controlled Goods Regulation exempt both Tribunal adjudicators and staff from the Controlled Goods Program. The respondent requested that the Tribunal issue certain orders to prevent the unauthorized disclosure, e.g., pursuant to an access to information request.
Analysis and Decision
8In my view, the applicant has two options to obtain disclosure to his counsel of the arguably relevant documents in question: obtain the necessary clearances for his counsel to gain access to them and/or request that the Tribunal order disclosure of the documents (see below). I decline at this time to make any order to protect the confidentiality of the arguably relevant documents in question. At this point, the documents in question have not been filed with the Tribunal and it is not obvious that the technical data involved, as described by the respondent, will itself be relevant or require more than general description, if at all, in any decision on the merits in this matter, if any. The Tribunal shall take appropriate steps to protect the confidentiality of the documents when it becomes necessary to do so.
Production of Documents
9The applicant’s other request filed on February 16, 2016 seeks production of several documents. The applicant seeks production of the investigation report that it submitted would have been prepared by the investigator or any document she prepared summarizing her findings and recommendations. The applicant stated that the respondent denies that such documentation exists and submitted that the denial is not credible. In paragraphs 11-13 of the request, the applicant submitted that the documents disclosed in Tabs 3, 14, 15 and 24 of the respondent’s disclosure of arguably relevant documents appear to be incomplete and requested production of the complete documents in question. Finally, the applicant requested production of Tabs 61 to 64 of the respondent’s arguably relevant documents, which are the documents the respondent has withheld because it states they are controlled goods under the DPA.
10In response, the respondent submitted that there are no arguably relevant documents to be disclosed to the applicant with the exception of the documents listed at Tabs 61 to 64 of its list of arguably relevant documents. The respondents submitted that the investigator did not create a written report and that the investigator’s entire investigation has been delivered to the applicant. The respondent submitted that to the extent there are any documents missing from Tabs 3, 14, 15 and 24 it will provide them to the applicant within 14 days of the date of its submissions (February 16, 2016). The respondent submitted that it has advised the applicant that it cannot produce the documents listed at Tabs 61 to 64 of its list of arguably relevant documents until the issues related to the application of the DPA and the Controlled Goods Regulations are resolved.
Analysis and Decision
11The Tribunal’s authority to order disclosure of documents arises pursuant to section 43(3)(f)(i) of the Code and Rule 1.7(p) of the Tribunal’s Rules of Procedure. At 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 is arguably relevant does not imply that the document is actually relevant or will be admissible in a hearing.
12The respondent stated that no investigation report of any kind was prepared and that the investigator’s entire file has been produced to the applicant. While the applicant does not accept this assertion, his submissions are speculative and do not provide a proper basis for concluding that the respondent’s statement that no report exists is untrue. The respondent has undertaken to address the applicant’s concerns set out in paragraphs 11-13 of the applicant’s request. The applicant may renew his request regarding Tabs 3, 14, 15 and 24 of the respondent’s arguably relevant documents if any items remain outstanding.
13The applicant’s request for an order requiring production of the documents listed at Tabs 61 to 64 of the respondent’s list of arguably relevant documents implies, obviously, that the Tribunal has the authority to make such an order, despite the requirements of the DPA and the Controlled Goods Regulations. The respondent’s submissions imply that the Tribunal does not have such authority. However, neither party has made any submissions on this issue. In my view, it is appropriate to direct the parties to made submissions regarding whether the Tribunal has the authority to order the production of the documents in question in light of the DPA and the Controlled Goods Regulations.
Request to Amend Disclosure in Future
14In his third request, the applicant requests an order permitting him to amend his list of expected witnesses and amend the documents he intends to rely upon up to the date of hearing and that the same relief should not be granted to the respondent. The applicant submitted that such an order is necessary because he has not received several arguably relevant documents (Tabs 61 to 64 of the respondent’s list of arguably relevant documents) and therefore may need to add to the documents he intends to rely upon and/or add or change the witnesses he expects to present at the hearing. The respondent opposes the request. The respondent submitted that the Tribunal’s Rules require the parties to file witness statement and documents to be relied upon at the same time in advance of the hearing and that allowing the applicant to review the respondent’s disclosure prior to filing his own would grant the applicant an advantage not contemplated by the Rules. The respondent submitted that the remedy proposed by the applicant does not address the applicant’s concern that he does not have access to certain arguably relevant documents. The respondent stated that it would consent to extending the deadline to file witness statements and documents to be relied upon until the applicant has received the documents in Tabs 61 to 64 of the respondent’s list of arguably relevant documents.
Analysis and Decision
15The applicant’s request is premature and I decline to address it. The applicant may request amendments to his witness list, witness statements and the documents he intends to rely upon, if necessary, after his counsel receives access to the documents listed at Tabs 61 to 64 of the respondent’s list of arguably relevant documents. The parties shall file their witness lists, witness statements and the documents they intend to rely upon, as they stand now, on the stipulated deadline.
Order
16The Tribunal orders as follows:
The parties shall file with the Tribunal and deliver to each other written submissions regarding whether the Tribunal has the authority to order the respondent to produce the documents listed at Tabs 61 to 64 of the respondent’s list of arguably relevant documents in light of the DPA and the Controlled Goods Regulations; and,
The applicant’s requests are otherwise dismissed.
Dated at Toronto, this 21st day of March, 2016.
“Signed by”
Douglas Sanderson
Vice-chair