Worrell v. DiPietro’s Meats and Groceries, 2017 HRTO 1480

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Worrell Applicant

-and-

DiPietro’s Meats and Groceries Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 8, 2017

Citation: 2017 HRTO 1480

Indexed as: Worrell v. DiPietro’s Meats and Groceries

WRITTEN SUBMISSIONS

John Worrell, Applicant

Self-represented

DiPietro’s Meats and Groceries, Respondent

Dennis Touesnard, Counsel

1On June 7, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested that the respondent produce the video tape of the incident that occurred on January 21, 2017. He stated that the store has security cameras, which would have captured the incident.

2On June 16, 2017, the respondent filed a Response to the RFOP, which opposed the request because the video surveillance footage is no longer available. The respondent stated that it has reviewed its surveillance footage, but the memory only goes back to May 5, 2017.

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 an issue in dispute in the proceeding, but the Tribunal cannot order the production of something that does not exist.

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