King v. Atlantic Packaging Products Ltd., 2017 HRTO 1389

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linus King Applicant

-and-

Atlantic Packaging Products Ltd. Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle Date: October 19, 2017 Citation: 2017 HRTO 1389 Indexed as: King v. Atlantic Packaging Products Ltd.

APPEARANCES

Linus King, Applicant Self-represented

Atlantic Packaging Products Ltd., Respondent Sonia Regenbogen, Counsel

1This Interim Decision addresses the respondent’s request for production of documents.

2The applicant filed an Application alleging that the respondent breached paragraph 3 of Minutes of Settlement it signed with him, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent did not fulfill its obligations to him in respect of its dealings with “Service Canada” and his request for Employment Insurance benefits.

3In his Application, he seeks, among other things, monetary compensation of “$100,000”.

4Following an attempt to address the merits of this Application in a telephone hearing, this matter was adjourned as it had become clear in the course of the applicant’s testimony that he was seeking to rely upon documentation he had not produced to the respondent or the Tribunal. The Tribunal issued a Case Assessment Direction (“CAD”) directing production of outstanding documentation.

5Following that CAD, the applicant filed a Request for Order During Proceedings (“RFOP”), seeking to amend his Application and providing documentation from his “Service Canada” file.

6In turn, the respondent sought certain information, postulated the necessity of deferral of this Application and sought further production.

7The Tribunal issued an Interim Decision in this matter, King v. Atlantic Packaging Products Ltd. 2017 HRTO 1341. In that Interim Decision, among other things, the Tribunal granted the applicant’s request to amend the Application, in part, and directed that the scheduled October 13, 2107 telephone hearing be used for the issues of deferral, the request for disclosure and any outstanding information.

8At the October 13, 2017 telephone hearing, it was confirmed that the respondent’s request for deferral was related to the question of whether the applicant had filed any appeal of any decision relating to his Employment Insurance benefits. It was also clarified that the initial decision date regarding the applicant’s Employment Insurance benefits was October 18, 2016, and that there was a March 2, 2017 decision denying the request for reconsideration of the October 18, 2016 decision. The applicant confirmed that there is no outstanding appeal regarding his Employment Insurance benefits. He also confirmed that he has been in receipt of some employment insurance benefits, but the amount and duration of the benefit period was not confirmed.

9Given the fact that there is no outstanding appeal regarding the applicant’s Employment Insurance benefits, I ruled that this Application is not deferred.

10The applicant also advised that of the $100,000 in financial compensation which he seeks in his Application, approximately $15,000 is in respect of a 6 month delay in the receipt of his Employment Insurance benefits, a fact which he attributes to the way in which the respondent dealt with Service Canada. He advised that the remainder of the financial compensation he seeks is in respect of “general damages”.

11Given the above-noted confirmations and information, the respondent seeks production of the following documents:

(i) A copy of the applicant’s initial application for Employment Insurance benefits, including any documentation he sent with his application for benefits;

(ii) A copy of the October 18, 2016 decision regarding his claim for Employment Insurance benefits;

(iii) A copy of the March 2, 2017 letter to him regarding his request for reconsideration of the above-noted October 18, 2016 decision;

(iv) A copy of any documentation showing the dates when and for which the applicant received Employment Insurance benefits, and the amount received. If the applicant is unable to obtain such documentation, the respondent requests his available relevant T4 document (2016);

(v) A copy of any documentation relating to a job search or other efforts to mitigate his losses during the first 6 to 8 months after his termination, including but not limited to pay stubs and relevant available T4 documentation (2016);

(vi) A copy of the complete file provided to the applicant by Service Canada in response to his Freedom of Information Request referenced in its May 5, 2017 correspondence to him.

12At the hearing, the applicant agreed to provide items (i) through (iv) listed above and indicated that he may not have some of that documentation in his possession, but will obtain it. He indicated that any documentation which he may have to obtain from Service Canada will likely require approximately 6 weeks for delivery.

13The respondent submitted that it also required items (v) and (vi) listed above, as they are arguably relevant to the question of potential damages and to the question of whether it breached paragraph 3 of the Minutes of Settlement in its dealings with Service Canada.

14The applicant indicated that he did not want to provide the mitigation information and documentation described at (v) above. He stated that he did not have any “replacement income” during the six months following his termination, but is “not comfortable” telling the respondent where he looked for a job.

15The applicant also indicated that he did not want to provide the respondent with the entire file he received from Service Canada, described above at (vi), as it contains private information which he is “not comfortable” sharing with the respondent. He also submitted that he is concerned about harassment and discrimination which could result from disclosure of his full file to the respondent, as he alleges that he previously gave them personal information on a confidential basis, which they used against him in their dealings with Service Canada.

decision

16The 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.

17While participation in litigation may result in parties being required to produce documents which they consider “personal” and are not comfortable producing, the relevant question is whether the documents are arguably relevant. In respect of parties’ privacy, parties are reminded of Rule 3.3 of the Tribunal’s Rules of Procedure which states:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

18In his Application, the applicant makes the allegation that the respondent’s dealings with Service Canada were in breach of its obligations under paragraph 3 of the Minutes of Settlement. Regarding his request for remedy, he alleges also that the respondent’s dealings with Service Canada were the reason for the 6 month delay in his receipt of Employment Insurance. I find that the documents described at (iv) and (v) are arguably relevant to these questions, but the documents at (iv) are limited to mitigation-related documentation for the 6 month period following the applicant’s termination. The question of whether the applicant mitigated or made any efforts to mitigate his damages in the period for which he seeks financial compensation, is relevant to the question of remedy before the Tribunal and the documents regarding such efforts are at least arguably relevant. The file received by Service Canada is at least arguably relevant to the question of whether the respondent breached its obligations under the Minutes of Settlement in its dealings with Service Canada and also in respect of whether any of the respondent’s alleged actions were the reason for the alleged 6 month delay in the applicant’s receipt of Employment Insurance benefits.

ORDER

19For the above reasons, the respondent’s production request is granted, with the limitation that the arguably relevant mitigation documents at paragraph (v) above are those which relate to the applicant’s mitigation and mitigation efforts in the first 6 months following his termination.

20The Tribunal orders as follows:

a. The respondent’s production request is granted for documents described at (i) through (vi) above, with the clarification that the documents described at (v) above are limited to the six month period following the applicant’s termination. Within eight weeks of this Interim Decision, the applicant must deliver to the respondent copies of this documentation;

b. The Registrar will schedule a one day in-person hearing for the merits of this Application; and,

c. The parties will deliver to each other and file with the Tribunal, no later than 45 days before the date scheduled for the in-person hearing, copies of all documents upon which they intend to rely and a witness list for their witnesses, including a statement summarizing each witness’s expected evidence. The applicant has commenced providing evidence but is reminded that he must complete a witness statement summarizing his own expected evidence also.