Kalka v. Brantford Police Services Board, 2017 HRTO 1415

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawn Kalka Applicant

-and-

Brantford Police Services Board Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 26, 2017 Citation: 2017 HRTO 1415 Indexed as: Kalka v. Brantford Police Services Board

WRITTEN SUBMISSIONS

Shawn Kalka, Applicant Self-represented

Brantford Police Services Board, Respondent Melissa Roth and Seann McAleese, Counsel

1The purpose of this Interim Decision is to deal with the applicant’s request for the production of documents from the respondent.

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, which alleged that the respondent discriminated against him with respect to employment because of his disability, and subjected him to reprisal.

3The respondent filed a Response to the Application and a Request for an Order During Proceedings (“RFOP”), which, among other things, requested that the Application be dismissed on a preliminary basis because it is untimely.

4The applicant filed a Response to the respondent’s RFOP, which opposed the request to dismiss his Application on a preliminary basis.

5The Tribunal scheduled a preliminary hearing for February 21, 2018, to hear submissions from the parties on the timeliness issue.

6The applicant subsequently filed several RFOPs, which appeared to request that the Tribunal order the respondent to produce certain documents. Specifically, he stated:

• Request copy of contract (written agreement), pay stubs and human resources file between Brantford Police Service and/or Brantford Police Association with Constable Cyrus Villa. Proving not equal treatment.
• City of Brantford Human Resources Jill Thompson advising of new contract changes and how it should be '"grandfathered" for employees currently off so no changes to be made.
• Cst Adam HILL advised of conversation with Chief of Police and Chief stated will “plant” child porn on any computer of persons they do not like.
• Request copy of minutes from BPA meeting where Cst. HILL was provided financial aid to cover lawyer fees of Human Rights Case.

7In support of his request for the production of documents, in one RFOP, the applicant stated: ”BPA President Mark Baxter made changes to contract to financially harm persons off with mental disability.” In another RFOP, he stated: “The reason for this request is to show the order was still upstanding and enforced minutes before a job transition meeting with the Applicant.”

8The respondent filed Responses to the applicant’s RFOPs, which opposed his request for the production of documents at this stage of the proceeding because the requested documents are not relevant to the timeliness issue.

9Rule 1.7(p) of the Tribunal’s Rules of Procedure provides that in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

10It 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.

11In 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….

12At this stage of the proceeding, the issue to be decided is whether the requested documents are arguably relevant to the timeliness issue to be heard at the preliminary hearing. With respect, the applicant’s RFOPs are difficult to understand. It is unclear what documents he is requesting, and why he is requesting them. In the circumstances, I am not satisfied that the requested documents are arguably relevant to the timeliness issue.

13Therefore, the applicant’s request for the production of documents from the respondent is denied at this stage of the proceeding.