Greeley v. Linamar Performance Centre, 2017 HRTO 1486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angus Greeley

Applicant

-and-

Linamar Performance Centre

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: November 10, 2017

Citation: 2017 HRTO 1486

Indexed as: Greeley v. Linamar Performance Centre

APPEARANCES

Angus Greeley, Applicant

Daniel Chodos, Counsel

Linamar Performance Centre, Respondent

Amelia Cooke, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of disability.

Background

2The applicant worked for the respondent as a millwright until he was dismissed from his employment in March 2016. The applicant alleges that the termination of his employment came after he advised the respondent he would be absent from work for medical reasons. The respondent states that it dismissed the applicant because he failed to report to work on three consecutive shifts without notifying the respondent of his absence. As a result, the respondent deemed the applicant to have quit his employment, pursuant to the Attendance Agreement the respondent has with its employees.

Request for Production

3On September 15, 2017, the applicant filed a Request for an Order (the “Request”) seeking an order to require the respondent to produce documents over which it has claimed litigation privilege. The document in question is an e-mail message, dated March 18, 2016, between Jennifer Rose and Matthew Evans, who are employees of the respondent, entitled “3 Day no Call”. Along with the Request, the applicant submitted his counsel’s letter to respondent’s counsel setting out the request for disclosure of this document and why the applicant does not consider the document to be protected by litigation privilege.

4On September 29, 2017, the respondent filed a Response to a Request for an Order, opposing the Request. The respondent submitted that Ms. Rose and Mr. Evans are Human Resources personnel for the respondent and that the communications in question took place on the date the respondent terminated the applicant’s employment. The respondent submitted that, accordingly, that litigation could reasonably be apprehended regarding the applicant’s employment. Accordingly, the respondent submitted the Tribunal should find that litigation privilege attaches to the communications in question.

5The respondent submitted that the Tribunal should address the Request by oral hearing in light of the interests at stake. The Tribunal’s practice is to address requests under Rule 19 of its Rules of Procedure in writing and the respondent has not in my view provided a sufficient basis for deviating from that practice.

Analysis and Decision

6At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.

7The respondent does not argue that the communications in question are not arguably relevant, but states that they are protected from disclosure by litigation privilege. Litigation privilege attaches to documents created for the dominant purpose of litigation. See Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319 and Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 SCR 521. The respondent submitted that litigation privilege attaches to the communications in question because the communications occurred on the day the respondent dismissed the applicant and litigation could reasonably be expected regarding the dismissal. The respondent provided no authority for this assertion. In Lastella v. Oakville Hydro Corporation, 2009 HRTO 1806, the Tribunal rejected the argument that it can be inferred that litigation is reasonably contemplated in cases where employment is terminated. Whether litigation was in fact reasonably contemplated, the respondent must in any event establish that the e-mail communication between Ms. Rose and Mr. Evans occurred for the dominant purpose of litigation. The respondent has provided no basis for making such a finding. In these circumstances, I cannot find that litigation privilege attaches to the e-mail communications in question. Accordingly, the respondent must disclose these documents since these communications appear to relate to the applicant’s dismissal and are arguably relevant.

Pre-Hearing Disclosure

8By Notice of Hearing, dated June 2, 2017, the Tribunal notified the parties that they were obliged to provide the following things to one another and to the Tribunal by no later than October 22, 2017:

a. a list of the witnesses they intend to call at the hearing of the Application;

b. witness statements describing what the witnesses will say when they testify; and

c. copies of the documents they intend to rely upon at the hearing.

9As of the date of this Interim Decision, the respondent has complied with these obligations, but the applicant has not. There may be serious consequences for the applicant if he does not comply with his obligations Rules 16 and 17.

Order

10The Tribunal orders as follows:

1. Within seven days of the date of this Interim Decision, the respondent shall deliver to the applicant the e-mail correspondence between Ms. Rose and Mr. Evans dated March 18, 2016 described as “3 Day no Call”;

2. Within seven days of the date of this Interim Decision, the applicant must deliver to the respondent and file with the Tribunal the documents he intends to rely upon at the hearing, a list of his witnesses and a brief statement describing what his witnesses will say when they testify, failing which the Tribunal may dismiss the Application as abandoned; and,

3. The applicant may file with the Tribunal and deliver to the respondent a supplemental brief of documents should he wish to rely upon the e-mail correspondence between Ms. Rose and Mr. Evans dated March 18, 2016 described as “3 Day no Call”.