Human Rights Tribunal of Ontario
B E T W E E N:
Kelly Dzikewich Applicant
-and-
Kraus Carpet LP Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren Date: June 27, 2016 Citation: 2016 HRTO 856 Indexed as: Dzikewich v. Kraus Carpet LP
Introduction
1This Case Assessment Direction addresses the Request for Order During Proceedings (Request) for production made by the applicant.
2The applicant alleges that the respondent discriminated against him because of his age contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the "Code") when he was an employee with the respondent.
3The Application is scheduled to be heard on July 6 and 7, 2016 in Toronto.
4In his Request for Order During Proceedings ("Request") made on May 10, 2016, the applicant requested production of all emails that were in his draft folder when he worked at the respondent.
5On June 15, 2016, the Tribunal issued a Case Assessment Direction (CAD) to advise the applicant that the Request he made was overbroad, and not sufficiently particularized. The CAD directed the applicant to provide a more particularized production request that identifies particular e-mails, or categories of e-mails; a range of dates of the requested emails; and names of recipients or senders of these emails. He was directed to also explain how each email is arguably relevant to the issues raised in his Application.
6The applicant filed a further Form 10 Request for Production on June 17, 2016 in which he narrowed his request to "all emails that were stored in my draft folder while at Kraus from the dates of April 2012 to April 2015 with the sender of [B.C., the respondent's Warehouse and Logistics Manager], and receipient(sic) of Kelly Dzikewich be produced for these emails have relevant proof of discrimination and harassment by [B.C.] against myself".
7The respondent filed a Form 11 Response to the Request. It submits that the Request fails to demonstrate how the requested emails are arguably relevant to the discrimination on the basis of age. The Request does not identify what information the emails contain to demonstrate the nexus to the discrimination alleged, apart from the broad assertion that they will provide proof of discrimination and harassment.
Analysis and Order
8It is well-established that the basic principle in determining a production request is whether the requested documents are "arguably relevant" to the issues in dispute in the proceeding.
9In paragraphs 12 and 13 of McKay v. Toronto Police Services Board, 2009 HRTO 1220, the Tribunal set out the appropriate analysis as follows:
The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is "arguable relevance", which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 46508 (ON HRT).
10In order to succeed on his Request for production, the applicant must establish that the documents he is requesting are arguably relevant to an issue in this proceeding. In my view, the applicant's production request made in response to the June 15, 2015 CAD remains overly broad and does not specifically identify how any of the numerous emails sought are arguably relevant to one of the issues to be determined in this Application.
11What is required to obtain disclosure at this stage of the proceeding is not simply a general request for all email correspondence between him and B.C. that "is proof of discrimination and harassment". There must be some level of specificity as to the documents sought and a demonstration of how such documents are arguably relevant to an issue raised in this proceeding. That is lacking here.
12For these reasons, the applicant's Request for production is denied.
Dated at Toronto, this 27th day of June, 2016.
"Signed By"
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Laurie Letheren Vice-chair