Cara v. York Catholic District School Board, 2016 HRTO 682

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Giuseppe (Joe) Cara Applicant

-and-

York Catholic District School Board Respondent

-and-

Ontario English Catholic Teachers’ Association Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner Date: May 18, 2016 Citation: 2016 HRTO 682 Indexed as: Cara v. York Catholic District School Board

WRITTEN SUBMISSIONS

Giuseppe (Joe) Cara, Applicant Self-represented

York Catholic District School Board, Respondent Amanda Lawrence, Counsel

Ontario English Catholic Teachers’ Association, Intervenor Jerry Raso, Counsel

Introduction

1This Application, filed on March 24, 2014, alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application is scheduled to be heard May 26 and 27, 2016.

request for production

3The applicant seeks the production of documents that he says are relevant to the issue of whether the respondent considered the applicant’s age when it refused to hire him in 2014 as the acting Department Head of Religion at St. Robert Catholic High School (“the school”) where he teaches, and, that same year, several months later, as the permanent Department Head. He alleges that the respondent not only preferred to hire someone who is young for those positions, someone known to the applicant, but also systemically preferred to hire young teachers for all of the Department Head positions at the school.

4Rule 1.7(p) of the Tribunal’s Rules permits the Tribunal to order production of any documentation and information in order to provide for the fair, just and expeditious resolution of any matter before it.

5The Tribunal has held that parties must disclose non-privileged documents that are “arguably relevant” to an issue in the Application, although the disclosed documents may not necessarily be admitted as relevant at the hearing.

6In Lampi v. Princess House Products Canada, 2008 HRTO 1, at para. 8, the Tribunal stated as follows with respect to the threshold for production and disclosure:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

7The applicant’s request for production lists the documents he seeks as follows:

A. The applications, interviews, scoring, and notes of all of the candidates for the position of Acting Department Head of Religion February 2014 of St. Robert Catholic High School and the position of Permanent Department Head of Religion April 2014 of St. Robert Catholic High School;

B. The Applicant's entire Position of Responsibility File and the entire Personnel File of the Applicant compiled by the Principal and the Superintendent;

C. The Personnel File of the Applicant found in Human Resources at the York Catholic District School Board office;

D. The year of birth of each of the following:

(a) All teachers interviewed for the position of Acting Department Head of Religion of St. Robert Catholic High School February 2014 and Permanent Department Head of Religion April 2014 of St. Robert Catholic High School;

(b) All the teachers promoted to the position of Acting/Department Head of St. Robert Catholic High School since 2007;

(c) All the teachers selected for training and/or teaching in the lnternational Baccalaureate (I.B.) program in the Religion Department at St. Robert Catholic High School since 2007;

E) The selection criteria for the position of lnternational Baccalaureate (I.B.) training and teaching at St. Robert Catholic High School:

(a) Qualifications required; and

(b) Application process: including advertisement, interview and selection.

8The first set of documents that the applicant seeks relates to the other candidates who applied for the acting and permanent Department Head positions for which the applicant applied. He seeks the other candidates’ applications for those positions, as well as the respondent’s notes related to the job competitions and the candidates. He also seeks the other candidates’ dates of birth.

Production Requests that are Granted

9Given that the applicant alleges that the successful candidate was less qualified than himself, but younger, I recognize the arguable relevance of the age of the successful candidate because it appears that the applicant merely assumes from his observation of the successful candidate that he is younger. Unless it is unknown to the respondent, the respondent must disclose the successful candidate’s year of birth by 5:00 p.m. on Friday, May 20, 2016. The respondent does not need to produce a document that reveals the successful candidate’s age if the document is not a document as described in the next paragraph of this Interim Decision. If the respondent does not know the year of birth, the respondent must say so.

10I also recognize the arguable relevance of the job applications of the applicant and of the successful candidate for both job competitions as well as the respondent’s notes and communications that are related to the applicant’s and the successful candidate’s interviewing and screening of their candidacies. The respondent must ensure that those documents are delivered to the applicant by 5:00 p.m. on Friday, May 20, 2016, if they have not been delivered already.

11The respondent may redact the personal information of the successful candidate and of any other third parties from the documents if it considers the redaction necessary to protect privacy; however, if the respondent does redact, it must bring to the hearing copies of the unredacted documents in the case that the applicant successfully argues at the hearing for the production of the unredacted copies.

12The parties should note Rule 3.3 of the Tribunal’s Rules of Procedure, which states:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

13As noted in Konesavarathan v. Middlesex London Health Unit, 2015 HRTO 1698, the above rule recognizes that the personal information of third parties may need to be disclosed during legal proceedings, but disclosure should still respect, where possible, the privacy interests of those individuals.

Production Requests that are Not Granted

14With respect to the documents and ages related to the candidates who, like the applicant, did not obtain the positions for which the applicant applied, the information does not appear to be arguably relevant. The applicant’s allegation is that the successful candidate was preferred over the applicant because of his age. There is no allegation that any other candidate came closer to succeeding than the applicant did, or was in any manner preferred over the applicant. I therefore deny the applicant’s request for the production of the documents and ages related to the candidates who were unsuccessful for the positions.

15With respect to the requests for documents demonstrating the years of birth of all teachers who were Acting/Department Heads at the school since 2007, if such documents exist, the applicant has not demonstrated that the ages of successful candidates relating to other hiring decisions is arguably relevant to whether his treatment in respect of the 2014 hiring decisions was discriminatory. He has not provided sufficient information or submissions regarding details of the other job competitions, including details about who competed, for me to be satisfied that the ages of successful candidates for those positions, for which the applicant did not apply, are arguably relevant to this Application. Accordingly, I do not find that there is a basis for an order for the disclosure of acting or permanent department heads’ years of birth, nor do I find that there is a basis for ordering the production of documents relating to the age of all Acting/Department Heads, if they exist, and decline to make such an order.

Production Requests that shall be addressed at the Hearing

16With respect to the applicant’s request for documents related to the I.B. program, it appears that the applicant alleges that the respondent required I.B. training and/or teaching experience for the positions for which the applicant applied, but that the respondent only allowed relatively young teachers to participate in I.B. training or to teach in the I.B. program. I will hear oral submissions from the parties at the commencement of the hearing with respect to this request.

17With respect to the applicant’s entire Position of Responsibility File, his entire Personnel File compiled by the Principal and the Superintendent, and his Personnel File kept by the respondent’s human resources office, it is not clear to me what arguable relevance to this Application the documents contained in them might have unless they were a part of what was considered by the respondent in the competitions for the acting and permanent Department Head positions for which the applicant applied. I will hear oral submissions from the parties at the commencement of the hearing with respect to this request as well.

summary of orders

18The applicant’s request for the disclosure of the successful candidate’s age is granted.

19Also granted is the applicant’s request for the production of the job applications of the applicant and of the successful candidate for both job competitions as well as all of the respondent’s notes and communications that concern the applicant’s and the successful candidate’s interviewing and screening of their candidacies.

20The applicant’s request for the production of the documents and disclosure of the years of birth related to the candidates who were unsuccessful for the positions is denied.

21The applicant’s request for the disclosure of the years of birth of any and all department heads of the school since 2007 is denied.

next steps

22The Tribunal will offer mediation-adjudication at the commencement of the hearing, pursuant to Rule 15A of the Tribunal’s Rules of Procedure. If the parties do not agree to participate, or if it fails to resolve the Application, then the Tribunal will deal with the outstanding requests for production as discussed above, and with any other outstanding preliminary matters, including whether the testimony of the applicant’s expert witness is necessary and/or appropriate. See, for example, Ogunyankin v. Queen’s University, 2011 HRTO 22.

23The applicant’s witnesses must be prepared to testify on the first day of the hearing with the exception of his expert witness who, if permitted to testify, will do so at the commencement of the second day of hearing. The respondent’s witnesses must be prepared to testify on the second day of the hearing.