Natasha Choli v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services et al., 2017 HRTO 1405

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natasha Choli

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services, Toronto Police Services Board, Chief of Police of Toronto Police Service, Hudson Bay Company,

Owen Baker, Bryan Maravilla, and Fera Zubaidy

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 24, 2017

Citation: 2017 HRTO 1405

Indexed as: Choli v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Natasha Choli, Applicant

Grace Vaccarelli, Counsel

Hudson Bay Company, Respondent

Maria Kotsopoulos, Counsel

1On July 20, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the respondent, Hudson Bay Company (the “respondent HBC”), produce video surveillance footage from a hallway between the retail store and the security office where she alleges that she was assaulted by security guards. She stated that she believes that there are surveillance cameras in this area, and the footage would have been retained.

2On August 3, 2017, the respondent HBC filed a Response to the RFOP, which opposed the request because there is no camera in the area outside the security office, and it has already produced all video footage with respect to the matters before the Tribunal.

3It is well-established that the basic principle in determining a production request is whether the requested documents or information are “arguably relevant” to the issues in dispute in the proceeding.

4In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal explained its approach at paras. 8-11:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra at para 41.

Documents which are arguably relevant may nevertheless not be ordered disclosed if they are privileged, the probative value is outweighed by potential prejudice to the party producing them, or the timing of the request risks derailing a just and expeditious hearing.

The Tribunal is also sensitive to privacy issues….

5Any such video footage would clearly be arguably relevant to the issues in dispute in the proceeding, but the Tribunal cannot order the production of something that does not exist. That said, it appears that the applicant does not accept the respondent HBC’s position that the footage does not exist.

6In the circumstances, the applicant’s request for the video footage is denied at this time subject to her right to cross-examine the respondent HBC’s witnesses about this matter at the hearing. The Tribunal may revisit the applicant’s request at the hearing.