The Alberta Human Rights Tribunal has refused an application for a production order from a former RBC investment advisor who alleged his termination was related to a disability.
The advisor, SM, worked for RBC Dominion Securities for about 20 years. He was fired, allegedly for misconduct, and given working notice.
During the notice period, SM disclosed to RBC that he required treatment for substance abuse. It extended his working notice while SM attended treatment and RBC’s insurer assessed if his alleged misconduct was related to a disability.
It determined the two things were not related, and RBC proceeded with the termination.
None of those facts have been proven, the tribunal noted.
But SM asserts he had a mental and/or physical disability due to substance dependency and that it was a factor in his termination. He also alleged RBC failed to reasonably accommodate his disability.
Application for production
SM sought an order directing RBC to produce:
- written communications between its investment advisors assuming carriage of SM’s clients and the respective clients leading up to and following his termination of employment regarding the assumption of carriage and/ or any rate/ fee adjustments; and
- RBC’s (including employees’) notes, emails, communications, etc. leading up to and following his termination of employment regarding RBC’s efforts to service his clients through other investment advisors.
SM said the records are relevant to both damages and the issue of the duty to accommodate because they could disclose what plans, if any, RBC had to proceed with the termination and gain a competitive advantage over him while it was investigating and considering his accommodation request.
RBC objected, calling it a fishing expedition that was overly broad.
“It does not identify the requested documents with reasonable particularity, contrary to the legitimate privacy interests of third party clients, will lead to further delay due to the onerous and far-reaching nature of the search, not relevant to mitigation since the complainant made no efforts to mitigate, and is at best related to a side issue,” the tribunal said.
The ruling
The tribunal noted that its hearings are a “search for the truth… fulsome disclosure is both expected and required,” it said.
However, SM’s request was simply too broad and included communications between third parties.
RBC noted it would take considerable time to meet this request, and lead to further delays, a position the tribunal called “not unreasonable.”
It also noted that the request from SM appeared to be based on speculation.
“(SM’s) theory appears to be that (RBC) acted in bad faith by undermining his future mitigation efforts while disingenuously engaging the accommodation process,” it said.
“These are serious allegations without evidence or compelling information that they are anything more than (his) bare assertion.”
Plus, there was a real issue around the privacy of third parties.
“The nature of the records likely include the financial interests of these clients. Like medical records, financial records are amongst the most private of records,” it said. “It is unclear exactly how many clients would be affected, but it will involve many, potentially (SM’s) previous entire book of business as an investment advisor.”
The application was dismissed.
For more information, see Melnyk v RBC Dominion Securities Inc., 2023 AHRC 5 (CanLII).
