Barlin Ahmed v. Extendicare West End Villa, 2016 HRTO 394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barlin Ahmed

Applicant

-and-

Extendicare West End Villa

Respondent

-and-

Canadian Union of Public Employees

Intervenor

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: March 30, 2016

Citation: 2016 HRTO 394

Indexed as: Ahmed v. Extendicare West End Villa

WRITTEN SUBMISSIONS

Barlin Ahmed, Applicant

Self-represented

Extendicare West End Villa, Respondent

John Bruce, Counsel

Canadian Union of Public Employees, Intervenor

Sue Lott, Counsel

Introduction

1This Application, filed on January 13, 2015, alleges discrimination with respect to employment on the basis of race, colour, ethnic origin, place of origin and disability.

2This Interim Decision addresses the applicant’s request for production of documents from the respondent, presumably ahead of the preliminary hearing scheduled for May 9, 2016 in London.

production requests

3The applicant asks for disclosure from the respondent of two emails, one being from the applicant’s previous employer, Kelly Cloutier, asking her other employer, Paul Harris, whether the applicant works for St Patrick's Home, and the second being Paul Harris' reply.

4The applicant’s sole reason for the request is that the Human Rights Legal Support Centre asked her for all relevant documents, and when she requested a copy of these from the intervenor, the intervenor apparently advised her to get a court order.

5The respondent and the intervenor object to the applicant’s request on the grounds that the applicant has provided no reasons for her request, or explained how the request is relevant to the preliminary hearing to deal with whether the Application should be dismissed pursuant to section 45.1 of the Code, in light of their view that the arbitration award already dealt with the Code issues.

Legal principles relating to production requests

6The test for document production is whether the documents sought are “arguably relevant” to the issues in dispute in the proceeding. 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 (“McKay”). The requesting party bears the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after materials and the subject-matter of the Application. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay, above, at para. 13.

Submissions and Analysis

7I am not satisfied in this case that the e-mails satisfy the test of arguable relevance, given that the applicant provided no real reasons for her request. In addition, the exchange of arguably relevant documents has not yet taken place because the matter is not yet set for a hearing. As such, the request for document production at this stage is premature.

order

8The applicant’s request for production of documents is denied at this stage of the proceedings without prejudice to the applicant to renew her request after the exchange of arguably relevant documents.