Fagan v. Toronto Transit Commission, 2017 HRTO 1244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Solomon Fagan

Applicant

-and-

Toronto Transit Commission and Wheel-Trans

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 21, 2017

Citation: 2017 HRTO 1244

Indexed as: Fagan v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Solomon Fagan, Applicant

Self-represented

Toronto Transit Commission and Wheel-Trans, Respondents

Angela Rae, Counsel

Medisys, Interested Party

Brian Greenspan, Representative

1This Interim Decision addresses the production requests filed by the applicant on September 7 and 9, 2017.

2The applicant filed an Application alleging that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Following an Interim Decision, 2017 HRTO 514, the only remaining allegations in this case are that the respondents discriminated against the applicant by failing to provide reasonable accommodations on the day of his appeal interview (February 7, 2014) by:

a. requiring him to attend an in-person interview;

b. failing to adequately inform him of the conditions of the interview (distance of room from drop-off point, etc.); and

c. failing to ensure equal access to the location of the interview.

production request – TTC and Wheel-trans

3By Request for Order During Proceedings, the applicant requested production of a complete copy of a chart of his Wheel-Trans trip history included at tab 24 of the respondents’ Book of Documents to be Relied Upon at the hearing. He also requested a digital copy of the manual for the software that produced the document or a link to download the manual.

4The respondents submitted that the applicant’s request should be dismissed because it seeks information that cannot be recreated, the information is irrelevant, and the request constitutes an abuse of process. In particular, the respondents submitted that the table was a screen shot from a staff member’s computer when the chart was generated. The respondents submitted that data relating to any trips that occurred more than two years ago is no longer available on their computer system. The respondents also indicated that they had provided the applicant with a copy of his Wheel-Trans trip history up to the date on which he filed a request for this history on January 13, 2015. The respondents attached to their Form 11 a copy of the table they sent to the applicant on January 14, 2015.

Finding

5The basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant” and not subject to some form of legal privilege. 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 would agree with the applicant that a party must normally provide a complete version of any document filed with the Tribunal. The absence of certain portions of a document only risks raising questions in the mind of the other party and the Tribunal about what information was omitted from the document.

7Having said this, it seems to me that the only Wheel-Trans trips that are at all arguably relevant for the purposes of this case are the trips that the applicant took to and from his appeal interview on February 7, 2014. In my view, the charts provided by the respondents provide sufficient information about these trips. I am not persuaded that any other information about the trips would be arguably relevant to the applicant’s accommodation allegations.

8As noted above, the applicant alleged that the respondents failed to accommodate his disability on the day of his appeal interview (February 7, 2014) by:

a. requiring him to attend an in-person interview;

b. failing to adequately inform him of the conditions of the interview (distance of room from drop-off point, etc.); and

c. failing to ensure equal access to the location of the interview.

9The Wheel-Trans trip data is only potentially arguably relevant to item c and even that is not clear. Therefore, I am not persuaded that any missing data in the columns on the chart provided by the respondents would have been arguably relevant to the issues I have to decide in this case. If the applicant wishes to make any submissions about the missing data, he may do so at the hearing.

production request -- medisys

10The applicant requested that Medisys, a third party to this proceeding, produce the full name and most current contact information of the person identified as “Lily” who worked as a security guard at Medisys’ former offices. The applicant submitted that the contact information for Lily is arguably relevant as she was a witness to some of the events on the day of his appeal interview.

11Medisys took no position with respect to the request but noted that it does not possess the information sought by the applicant as “Lily” was not and is not an employee of Medisys.

12I agree with the applicant that Lily’s last name and contact information are arguably relevant to this case since she is a potential witness for the applicant. As a result, Medisys must disclose to the applicant any information about Lily’s last name and most current contact information that is within its knowledge, possession or control.

ORDER

13For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s production request relating to the respondents is denied.

b. The applicant’s production request relating to Medisys is granted. Within 14 days of the date of this Interim Decision, Medisys must disclose to the applicant any information about Lily’s last name and most current contact information that is within its knowledge, possession or control.