Issa Muse v. Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Labour, 2016 HRTO 39

Human Rights Tribunal of Ontario

B E T W E E N:

Issa Muse Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Labour Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: January 11, 2016 Citation: 2016 HRTO 39 Indexed as: Muse v. Ontario (Labour)

Written Submissions

Issa Muse, Applicant Billeh Hamud, Counsel

Her Majesty the Queen in right of Ontario, as represented by the Ministry of Labour, Respondent Kevin Dorgan, Counsel

1The applicant has filed a Request for Order During Proceedings (“RFOP”) for the production of documents.

2The basic principle in determining a production request is whether the requested documents are “arguably relevant”. The applicant has the burden of demonstrating a nexus between the information or document sought and the issues in dispute before the Tribunal.

3The applicant has sought production of the following information/documents:

a. Legible and clear copies of the notes/comments of: Mr. Dennis Mundy dated March 14, 2014 for the technical interview of Mr. Dari Laine; Mr. T. Allen dated March 14, 2014 for the technical interview of Mr. Dari Laine; Mr. Pat Raimondo dated March 28, 2014 for the technical interview of Mr. Issa Muse; and, Mr. Dennis Mundy dated March 28, 2014 for the technical interview of Mr. Issa Muse.

b. The Engineer Critical Reasoning Test Battery (CRTB) questions, Mr. Dari Laine’s corresponding answers and score, the corresponding answer sheet and the cut off score for the CRTB test; and, The Performance Oriented Structured Interview (POSI) questions and answers of Mr. Dari Laine, the answer sheet of Mr. Dari Laine and the cut off score for the POSI interview.

c. The completed Reference Check Consent Form for Mr. Dari Laine and any notes, documents, records subsequently created by the Respondent as a result of this form.

d. Any documents relating to the cut off score for the technical interview.

e. Any records, notes, copies, emails, correspondence from Mr. Roger Jefferys with respect to his participation in the technical interview of Mr. Dari Laine and the applicant.

4The respondent has agreed to provide the applicant with a typed copy of all of the handwritten notes of the panelists identified in subparagraph 3(a).

5Since the applicant did not participate in and was waived through the CRTB and POSI stages of the competition, and given there is no issue with respect to differential treatment based on a prohibited ground in respect of the CRTB and POSI stages of the competition, it is not clear to me how the CRTB and POSI questions and answers are arguably relevant, so I am not prepared to order their production at this time. This Decision does not prevent the applicant from renewing his request for production of this material as the hearing progresses.

6With respect to the material identified in subparagraph 3 (c), the respondent advises that it has now provided the applicant with the relevant material.

7With respect to the material identified in subparagraph 3(d), the respondent advises that it has now provided documents which appear to satisfy this specific request for production.

8The respondent indicates that the material referred to in subparagraph 3(e) is not in its possession and does not exist. Obviously, the Tribunal cannot order production of documents that are non-existent and not in a party’s possession.

9Under the circumstances, there will be no production order at this time.

10I am not seized.