Ralston Clarke v. Ontario Nurses’ Association, 2017 HRTO 1207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ralston Clarke

Applicant

-and-

Ontario Nurses’ Association

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: September 14, 2017

Citation: 2017 HRTO 1207

Indexed as: Clarke v. Ontario Nurses’ Association

WRITTEN SUBMISSIONS

Ralston Clarke, Applicant

Lai-King Hum, Counsel

Ontario Nurses’ Association, Respondent

Dan Shields, Counsel

1This Interim Decision addresses the production request filed by the applicant.

2The applicant filed an Application alleging discrimination because of race contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, one of the applicant’s allegations was that he was subject to differential treatment as he received “no support”, citing his supervisor’s failure to respond to his emails.

3By Request for Order During Proceedings (RFOP) filed on August 2, 2017, the applicant requested production of several categories of documents. In its response to the RFOP, the respondent advised that many of the requested documents had been provided and took the position that the only category of requested documents they were not providing were “all email communications between Ralston Clarke and Beverly Mathers from the period of November 2015 to April 2016”. They indicated that they provided “relevant” emails between Mr. Clarke and Ms. Mathers, but that the request for all emails between the two for the entire period of the applicant’s employment was a “fishing expedition”.

4The applicant subsequently wrote to the Tribunal, copying the respondent, to advise that most of the documents sought in the RFOP were provided and that only the above-noted category remained in dispute.

decision

5The basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant”. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal. 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 v. Toronto Police Services Board, 2009 HRTO 1220 at paras. 12-13.

6I find that the emails from Ralston Clarke to Beverly Mathers, and any responses from her, during the period of November 2015 to April 2016, are arguably relevant to the allegation in this Application regarding her failure to respond to his emails, and must be produced by the respondent. To be clear, the respondent is not required to produce all emails from Beverly Mathers to Ralston Clarke unless they are responses to emails he has sent to her, or unless they are otherwise arguably relevant to allegations made in this Application.

order

7For the above reasons, the Tribunal orders as follows:

a. The applicant’s production request is granted in part.

b. Within 7 days, the respondent must deliver to the applicant and file with the Tribunal copies of emails from Ralston Clarke to Ms. Mathers from the period of November 2015 to April 2016, and any responses from Ms. Mathers to those emails.