HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David MacKinnon
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: MacKinnon v. Ontario (Community Safety and Correctional Services)
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 disability.
2On July 4, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”) to amend the Application (“request to amend”) by adding a request for $25,000 in damages for injury to dignity, feelings and self-respect.
3On July 16, 2017 the applicant filed a second RFOP requesting the production of documents, namely “all overtime worked between July 21, 2014 and December 31, 2015 by Operational Managers at the Toronto East Detention Centre”.
4On July 25, 2017 the respondent filed a Response to a Request for an Order opposing the request for production. The respondent did not file a response to the request to amend.
5The respondent requested that the matters be dealt with by way of conference call followed by a written decision. The applicant indicated that he would be willing to participate in a conference call. I find that a conference call is not required to address this matter.
6This Case Assessment Direction (“CAD”) addresses the request to amend the Application and the request for production of documents.
Request to amend
7Rule 1.7(c) of the Tribunal’s Rules of Procedure states “in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended”.
8In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336 , and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926. The Tribunal regularly grants requests to amend remedies up to the date of the hearing and, in some cases, after the hearing has begun.
9This is a request to amend remedies on consent. I am satisfied that the applicant should be permitted to amend the Application as described in the request to amend.
request for production
10The applicant argues that he makes the request for production because of a contradiction in the documentation produced by the respondent. Specifically, the applicant asserts:
The employer in one document states that after a review of their operational needs there was a decision not to renew my contract. In another document, the employer contradicts itself by stating by hiring another fixed term manager would greatly reduce the financial impact of having to hire overtime. I am asking for the requested documents to see if there was any relief in their predicament related to hiring.
11The respondent opposes the request arguing that it is overly broad and not relevant to the issues before the Tribunal. The respondent is also concerned about the privacy of information about other employees not involved in this proceeding.
12The respondent explains that the first document that the applicant refers to is an email correspondence between the applicant and his employer, which provides that after having assessed the institution’s operational needs, a decision was made not to offer the applicant another fixed-term contract. The second document is a Business Case for Recruitment that the respondent submitted to management for consideration before hiring another fixed-term Sergeant. The respondent argues that the documents do not contain a contradiction.
13The respondent explains that at the time of its decision not to offer another fixed-term contract to the applicant, the applicant had been away from work for an extended period of time and there was no indication that he would be available or interested in returning to work in the foreseeable future. Hence the respondent decided that he could not assist with the institutions’ staffing needs. The respondent, having assessed its operational needs, decided to hire another retired fixed-term contract employee to help meet staffing obligations. The amount of overtime worked by all Operational Managers at the Toronto East Detention Centre between July 21, 2014 and December 31, 2015 is not relevant to the issues before the Tribunal in this matter.
14At 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.
15The issue raised in the Application is whether the applicant was subjected to discrimination because of his disability during his employment from mid-July 2014 until he was not offered another fixed-term contract. In my view, the applicant has failed to show the contradiction in the respondent’s description of events or the relevance of the documents requested. I find that the request for the amount of overtime worked by all Operational Managers at the Toronto East Detention Centre between July 21, 2014 and December 31, 2015 overly broad and not arguably relevant to the Application.
Order
16Accordingly, the Tribunal orders as follows:
a. The Application shall be amended to add the remedy of $25,000 in damages for injury to dignity, feelings and self-respect;
b. The request for production of “the amount of overtime worked by all Operational Managers at the Toronto East Detention Centre between July 21, 2014 and December 31, 2015” is denied.
17I am not seized of this matter.
Dated at Toronto, this 4th day of August, 2017.
“Signed By”
Josée Bouchard
Vice-chair