John Gallagher v. OCAD University, 2017 HRTO 1258

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Gallagher Applicant

-and-

OCAD University Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 25, 2017 Citation: 2017 HRTO 1258 Indexed as: Gallagher v. OCAD University

WRITTEN SUBMISSIONS

John Gallagher, Applicant Self-represented

OCAD University, Respondent Margot Blight and Stephanie Young, Counsel

1This Interim Decision addresses the two following requests made by the applicant: a production request and a request for anonymization, a publication ban and a sealing order. This Interim Decision also makes directions relating to the applicant’s communications with the Tribunal and the method by which the respondent delivers materials to the applicant.

2The applicant alleged that the respondent discriminated against him because of disability and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Among other things, the applicant alleged that his managers bullied him and unfairly criticized his performance. He also alleged that the respondent failed to provide reasonable accommodations for his disability. In addition, he alleged that the respondent reprised against him for making an accommodation request by threatening him with termination if he did not agree to an extension of his probationary period.

Production request

3By Request for Order During Proceedings (Form 10) (“RFOP”) filed on June 27, 2017 the applicant requested production of the following documents or information from the respondent:

a. thirty-five emails that the applicant claimed the respondent would not disclose with their arguably relevant documents;

b. answers to certain questions that the respondent did not fill out in its Response;

c. “steps and formal documentation” for the following policies: “Performance Review & Development Plan Guide, Accommodation in Employment for Persons with Disabilities, Respectful Work & Learning Environment”; and

d. the respondent’s entire Performance Review and Development Plan Guide.

4The respondent filed a Form 11 Response to the applicant’s RFOP in which it indicated that it has already produced the vast majority of the emails requested by the applicant with the exception of three e-mails. These three emails are the following:

a. an email dated September 29, 2016 from Nicky Davis to the applicant in regards to a new policy on vacation for managers and confidential staff;

b. an email dated October 2, 2016 from Katrina Huggett to the applicant regarding an illness from work; and

c. an email dated September 16, 2016 from the applicant to Jason Northway Frank about the president’s office hours.

5The respondent submitted that the first of these three listed emails is not arguably relevant to the issues in this case. With respect to the other two emails, the respondent stated that the applicant already had copies of them but nevertheless attached copies of them to its Form 11.

6The respondent provided responses to some of the questions left blank in its Response. It did not provide answers to questions 15, 16, 17 and 19 of the Response stating that they are inapplicable in this case.

7The respondent indicated that it has already produced to the applicant a copy of its Accommodation in Employment for Persons with Disabilities policy and its Respectful Work & Learning Environment policy. It submitted that it has produced all arguably relevant documentation relevant to its efforts to accommodate the applicant and with respect to the applicant’s interactions with its Diversity, Equity & Sustainability Initiatives Office. While it took the position that its Performance Review & Development Plan Guide is not arguably relevant to this matter, the respondent produced it with its Form 11.

8The applicant replied to the respondent’s Form 11 by stating that the respondent had failed to produce two e-mails to him, an email from Nicky Davis to him dated October 21, 2016 and an email from Cathy Cappon to him dated September 30, 2016. The respondent replied that it has produced these emails to the applicant in its arguably relevant documents brief.

Finding

9The 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.

Emails referred to above

10Based on the materials filed by both parties, it appears that the respondent has produced to the applicant all of the emails he has requested except for an email dated September 29, 2016 in regards to a new vacation policy. The respondent has taken the position that this email is not arguably relevant to the issues I have to decide in this case.

11At this early stage of the case, it is difficult to determine whether this email is arguably relevant to the issues in this case or not. In light of the low threshold for production, I find it appropriate to order the production of this email. The parties may make submissions on the actual relevance or non-relevance of the email at the hearing.

12From the applicant’s submissions, it appears that he is requesting copies of emails that he already has in his possession due to a belief that the respondent is required to produce documents even if the applicant already has a copy of them. A request for production is a mechanism by which a party may obtain production of documents they do not already have. It is not a mechanism to force production of materials that are already in a party’s possession. Therefore, I do not find it appropriate to order production of any emails the applicant already has. If there are emails listed in the applicant’s Form 10 that the respondent has not produced to him and/or that he does not already have, he may file a new Form 10 seeking production of these emails. However, the applicant should take note of the page limit set below for any future Form 10s filed in this case.

Answers to Questions in Response

13The questions that the respondent has not answered in its Response relate to documents it has in its possession, the applicant has in his possession or that a third party has in its possession. Once a proceeding has moved into the disclosure phase, as this matter has, parties have obligations under the Tribunal’s Rules of Procedure to disclose to each other all arguably relevant documents. This obligation supercedes any listing of documents in a Response. Therefore, I am not persuaded that it is necessary or appropriate to order the respondent to provide answers to these questions on the Response form.

Documents listed at para. 3(c) above

14It is unclear from the applicant’s Form 10 exactly what documents he is seeking in relation to the policies listed in his Form 10. The respondent has submitted that it has produced all arguably relevant documents related to these policies. If the applicant believes that the respondent has failed to produce specific documents that are arguably relevant to the issues in this case, he must file a Form 10 specifying precisely what documents he is seeking.

Performance Review and Development Plan Guide

15The respondent has produced the entire Guide with their Form 11. Therefore, this request is now satisfied.

Summary re. Production Request

16The respondent is ordered to produce to the applicant a copy of the email from Nicky Davis to the applicant dated September 29, 2016 dealing with the new policy on vacation for managers and confidential staff. It should be noted that the threshold to be met to obtain the production of documents is “arguable relevance”. This threshold is lower than the “relevance” threshold that has to be met to have evidence admitted at the hearing. Just because documents are ordered produced does not mean that they will be admitted at the hearing. The parties may make submissions at the hearing as to whether this email is relevant and should or should not be admitted into evidence.

anonymization request

17The applicant requested that the Tribunal anonymize this Application and order a publication ban and sealing order with respect to documents in this case. He submitted that such measures are appropriate due to his mental health history and physical disabilities, and the stigma he might face in relation to the disclosure of medical evidence relating to his mental disability in particular. In support of his request, the applicant submitted various documents including a letter from his psychiatrist in which the psychiatrist indicates that the applicant has been treated for depression, Generalized Anxiety Disorder and ulcerative colitis.

18The respondent opposed the applicant’s request on the basis that he has failed to demonstrate exceptional circumstances that would justify the measures he is seeking. The respondents submitted that the medical information in this case is no more sensitive than in any case involving allegations of disability-related discrimination.

Findings

Anonymization

19Rule 3.11 of the Tribunal’s Rules of Procedure states:

The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

20The Tribunal’s practice has been to consider any request to keep the name of a party or other information confidential as an exception to the general principle that the Tribunal’s process should be open and transparent in accordance with the province’s legal system. See TA v. 60 Montclair, 2009 HRTO 369; S. and C. v. Toronto Police Services Board, 2008 HRTO 437.

21In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that "human rights applications often include personal information" and thus it will look for "exceptional conditions of sensitivity or privacy necessitating anonymity" before granting anonymization. In C.M. v. York Region District School Board, 2009 HRTO 735 at para. 20 (“C.M.”), the Tribunal stated the following with respect to the importance of an open justice system:

An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. ...it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

22The Tribunal has granted requests for anonymization where there were specific threats to personal safety, where there were parallel criminal proceedings arising from the same facts and relating to an alleged sexual assault, and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis.

23Based on the letter from his psychiatrist, it appears that the applicant has been treated for depression and Generalized Anxiety Disorder. I do not wish to be taken as minimizing the applicant’s experience of his disability. However, in my view, the circumstances of this case are not sufficient to justify anonymization. The Tribunal receives a great many applications from individuals with experiences of depression and Generalized Anxiety Disorder. Therefore, these conditions do not satisfy the exceptional circumstances in which anonymization is appropriate. I note that the psychiatrist’s letter does refer to various issues and situational crises the applicant has had to deal with. In my view, the kind of situational crises discussed in the letter do not rise to the level of the kind of acute mental health crises present in cases where the Tribunal has granted anonymization in the past.

24I wish to assure the parties that the Tribunal has a practice of not disclosing more personal medical information in its decisions than is necessary for the purposes of the decision. In this case, it is not clear to me that it will be necessary, nor appropriate, for the Tribunal to delve into the applicant’s full medical history. The main issue on which I will need to hear medical evidence in this case is in relation to the accommodation allegation raised by the applicant. However, I note that the medical evidence needed to decide this issue is focused on whether the applicant had a disability at the time of his accommodation request and, if so, what disability-related needs required accommodation from the respondent. This evidence is very focused evidence that does not require an intrusion into the applicant’s full medical history.

25Publication bans and sealing orders are even more exceptional orders than anonymization orders. Therefore, for the same reasons set out above, I deny the applicant’s request for a publication ban and sealing order.

applicant’s correspondence with the Tribunal

26Under Rule A3.1(c) of the Social Justice Tribunals of Ontario Common Rules, the Tribunal has the power to make orders and directions to ensure the proportionate use of its resources.

27The applicant has filed a very substantial amount of correspondence with the Tribunal and also copied the Tribunal on various emails he has sent to the respondent. In a previous Case Assessment Direction, I notified the applicant that the Tribunal’s Rules of Procedure set out an orderly process by which applications are processed by the Tribunal. I advised him that the Tribunal discourages parties from repeatedly sending emails to the Tribunal and that the Tribunal would only respond to emails if it considers that a response is necessary. I also advised the applicant that the Tribunal might set further limits on his communications in the future if the volume of his emails became unreasonable.

28I consider the volume of the applicant’s communications with the Tribunal to have become unreasonable. The applicant has a practice of sending several communications all relating to the same subject matter. For example, he has sent several communications to the Tribunal in advance of filing an RFOP (Form 10), each advising that he would be filing a Form 10. Such communications are unnecessary and a significant burden on the Tribunal’s limited resources.

29Going forward, the applicant is directed to cease sending any communications to the Tribunal unless he is making a Request for Order During Proceedings (Form 10) in which he is seeking a particular order from the Tribunal, filing a Form 11, or responding to a direction or order made by the Tribunal. The applicant must also cease copying the Tribunal on any communications between him and the respondent. If the applicant does file a Form 10, he is limited to attaching 10 pages to the Form 10. If these pages are pages that he himself has drafted, they must be double spaced, in at least 12 point font with at least one inch margins. The same specifications also apply to any Form 11 filed by the applicant in response to an RFOP filed by the respondent.

30To ensure fairness, the page limit and specifications for Form 10s and Form 11s will also apply to the respondent.

31The parties will note that the Tribunal has no form for a reply to a Form 11. The Tribunal’s Rules of Procedure do not provide a right to reply to a Form 11. The parties in this case are not permitted to file any replies to Form 11s. If the Tribunal requires a reply from a party, it will direct the party to provide one.

32The Tribunal may issue further directions in relation to the parties’ communications with the Tribunal if necessary.

Respondent’s Delivery of Materials to the Applicant

33In his Application, the applicant did not consent to the delivery of materials by email. He has also requested that the respondent avoid delivering materials to him by email. Therefore, the respondent must ensure that any materials it delivers to the applicant are delivered either by regular mail or by courier only, and not by email. However, the respondent may continue to file materials with the Tribunal by email.

34The applicant has so far not advised the Tribunal that he does not wish to receive communications from the Tribunal by email. The Tribunal will continue to communicate with the applicant by email unless the applicant makes a request that another method be used as an accommodation.

orders

35For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s production request is granted in part. The respondent is ordered to produce to the applicant a copy of the email from Nicky Davis to the applicant dated September 29, 2016 dealing with the new policy on vacation for managers and confidential staff.

b. The applicant’s request for anonymization, a publication ban and a sealing order is denied.

c. The applicant is directed to cease sending any communications to the Tribunal unless he is making a Request for Order During Proceedings (Form 10), filing a Form 11 or responding to a direction or order of the Tribunal. Any Form 10s and 11s filed by either party must meet the page limit and specifications set out above.