Fagan v. Toronto Transit Commission, 2017 HRTO 1332

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: October 10, 2017 Citation: 2017 HRTO 1332 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 last production request filed by the applicant.

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 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 (“RFOP”), the applicant requested production of any information in their possession or control that would enable the applicant to identify and locate a potential witness “Lily”. This individual was a security guard at the building where the applicant attended his appeal interview on February 7, 2014. In particular, the applicant requested the name and contact information for the security company for the building at 95 St. Clair Ave. West and Medisys’ rental agreement with the building management for 95 St. Clair Ave. West. He requested this information from the respondents and Medisys, a third party to this proceeding.

4The respondents submitted that the applicant’s request should be dismissed as against them as I have already found that the last name and contact information for “Lily” is subject to litigation privilege.

5Medisys took no position in relation to the applicant’s request for contact information related to the building management for 95 St. Clair Ave. West. However, Medisys opposed production of the lease agreement as it contains proprietary information.

6Despite the fact that the Tribunal’s Rules of Procedure do not provide a right to reply to a Response to an RFOP, the applicant replied to the Response filed by Medisys stating that the lease is relevant to determining whether Medisys is in compliance with its contract with the respondents.

Finding

7The 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.

8I agree with the applicant that the name and current contact information for the security company that provided security services for 95 St. Clair Ave. West on or about February 7, 2014 is arguably relevant to the issues in dispute in this case and must be produced. I am not persuaded that the name of the security company is subject to the litigation privilege in the same way as Lily’s personal contact information. Therefore, the respondents and Medisys must produce to the applicant any of the following information that is within their knowledge, possession or control: the name of the company that provided security services at 95 St. Clair Ave. West on or about February 7, 2014, as well as the name, street address, email address, phone number and fax number of the representative of the security company who administered the contract with 95 St. Clair Ave. West on or about February 7, 2014.

9I am not persuaded that the lease between Medisys and the management of the building at 95 St. Clair Ave. West is arguably relevant to the issues I have to decide. The issue I must decide is not whether Medisys is in compliance with its contract with the respondents; it is whether the respondents complied with their duty to provide reasonable accommodations to the applicant under the Code.

reply to Responses to RFOPs

10As I noted in Interim Decision 2015 HRTO 1571, in this case, the Tribunal’s Rules of Procedure do not provide for a right of reply to Responses filed in relation to RFOPs.

11In the future, the parties must refrain from replying to any Responses filed in relation to RFOP’s, as such replies are not contemplated by the Rules. If the Tribunal requires a reply from a party, it will direct the party to provide one.

deadline for applicant’s witness list and witness statements

12As stated in the Interim Decision I issued last week, the deadline for the applicant’s witness list and detailed witness statements for himself and any other witness he intends to call at the hearing with the exception of his intended witness “Lily” is 5 PM, October 10, 2017. The applicant must limit the intended evidence contained in his witness statement to the issues remaining in this case which I are listed in para. 4 of Interim Decision 2017 HRTO 1143.

13After I have received the applicant’s witness list and witness statements, I will issue a pre-hearing CAD addressing the use of hearing time on October 17, 2017.

ORDER

14For the reasons set out above, the Tribunal orders as follows:

a. By no later than 9 AM on Thursday, October 12, 2017, the respondents and Medisys must produce to the applicant any of the following information that is within their knowledge, possession or control: (i) the name of the company that provided security services at 95 St. Clair Ave. West on or about February 7, 2014 and (ii) the name, street address, email address, phone number and fax number of the representative of the security company who administered the contract with 95 St. Clair Ave. West on or about February 7, 2014.

b. By no later than 5 PM on October 10, 2017, the applicant must deliver to the Tribunal and the respondents, his witness list and a detailed witness statement for himself and any other witness he intends to call at the hearing with the exception of his intended witness “Lily”. The applicant must limit the intended evidence contained in his witness statement to the issues remaining in this case which are listed in para. 4 of Interim Decision, 2017 HRTO 1143.