Proportionality and limited disclosure in human rights claims

A recent ruling from the Canadian Human Rights Tribunal (CHRT) is providing timely and practical guidance for HR professionals handling discrimination complaints – especially in cases involving self-represented employees.  

In Osiebe v. FedEx Ground Package System Limited, 2025 CHRT 18, the Tribunal denied the employer’s request to strike parts of the employee’s complaint, and allowed only limited disclosure of the former employee’s personal information, reinforcing the importance of proportionality and arguable relevance. 

At the core of the case was whether FedEx could require the complainant, a former operations administrator who worked on a part-time and fixed-term contract basis, to provide extensive documentation detailing his entire employment history and any past discrimination complaints. 

The Tribunal ruled against these requests, noting that such disclosure would be unduly invasive, prejudicial, and disproportionate to the scope of the complaint. 

The complainant, a Black man from Nigeria, alleges that FedEx discriminated against him in relation to his employment, based on his colour, race and national or ethnic origin, and sex.  

Proportionality in human rights cases 

According to employment lawyer Aaron Zaltzman, associate at Whitten and Lublin in Toronto, in human rights cases at the federal or provincial level, proportionality begins with defining what is "arguably" relevant to the case.  

“Proportionality may be defined differently in different contexts, so the first element of it is certainly determining arguable relevancy,” he says. 

“Which is making sure that the court is not acting as too much of a gatekeeper on disclosure before actually having a chance to review the evidence ... the arguable relevancy is a fairly low threshold, as the [Tribunal] points out." 

Relevance, not fishing expeditions 

In its ruling, the Tribunal made clear that overbroad disclosure requests – especially those seeming to seek to cast doubt on a complainant’s character – will not be entertained lightly. In particular, FedEx sought records of any other discrimination complaints the former employee may have made during his career.

The Tribunal firmly rejected that ask, stating that the complaint, "Is solely about [the complainant’s] alleged experience with FedEx Ground and its employees. It does not concern any other employers.” 

Zaltzman agrees the request was highly problematic, and warns that employers who engage in such "fishing expeditions" — digging into a complainant's history — are playing with fire. 

"That was a hugely prejudicial ask that they were making, and also one of the things that they're balancing with proportionality, is what's feasible for the parties to actually be able to produce," says Zaltzman.

"And that's going to be different depending on whether the party is self-represented, what stage of the proceedings it's at and what kind of adjudicated body you're in."

'Problematic' for HR

The Tribunal stated in this decision that complainants can use statements of particulars (SOPs) to "add refining, clarifying and/or more illustrative details than were shared in the original complaint so long as these changes do not cause prejudice to the other parties."

John Hyde, managing partner at Hyde Law in Toronto, agrees that proportionality is tied to fairness, but he also raises concerns about the potential risks (and work) it creates for HR, stating that the "nexus" of connection the Tribunal requires to allow these amendments is too ambiguous.

"A responding party or a defendant is entitled to know the case they have to meet, that is a question of procedural fairness and natural justice. It's ingrained in our legal system," Hyde says.

“What this does for HR, it says not only do you have to look at the complaint, the allegations and the particulars of the complaint when provided, you have to engage in a game of Whack-a-Mole, questioning what other kinds of particulars you may be faced with down the line, including fresh allegations which may have a mere nexus to the original complaint. But you have to cover all the bases, including those bases which are not before you." 

Balancing discovery and fairness 

In contrast to the rejected requests, the Tribunal did require the employee to disclose more limited information: his work history during and after his time at FedEx, and details surrounding his claim that losing the job caused him to move away from Victoria, B.C., which he claims caused the dissolution of his marriage. 

This narrow scope aligns with the idea that both parties must be allowed to understand and meet the case being presented against them, without overburdening one side.  

"When you're in litigation, both sides have a right to know the case that needs to be met," says Zaltzman. "And that's the basic principle at work with discovery, is that both sides should be able to know what all the evidence is going to be as presented in trial." 

Hyde warns that delayed allegations create serious risks for due process, including finding witnesses for statements long after the fact.

 "Sometimes you lose witnesses," he says. 

"Sometimes they just simply disappear because they've gone on to do other things and you can't reach them." 

A critical HR takeaway from the decision is that overreaching disclosure strategies can backfire. 

"Best case scenario is that they're not going to be granted their request," Zaltzman warns.  

"But a worst-case scenario – the court's going to look at it as just them employing bad faith tactics in litigation ... especially if you're up against a self-represented employee." 

While the Tribunal showed some flexibility due to the complainant’s self-representation, Hyde cautions that this can create practical difficulties for employers. 

“If a person is self-represented, there still can be hundreds and hundreds of thousands of dollars on the line,” he says. 

"I don't think that being self-represented should provide a free right to circumvent the protections set within our justice system." 

Recommendations for HR: investigate with foresight 

Hyde emphasizes that although human rights tribunal cases are largely decided according to their own specific facts, this decision does serve as a signal to HR and employers to be more proactive when conducting investigations.  

"You have to effectively second guess and look beyond what the complaint is,” Hyde says.  

“Because there's a possibility that fresh allegations could be thrown at you at some time in the future, make sure you do a very in-depth investigation when you're facing allegations of wrongdoing, particularly in the human rights arena." 

Zaltzman adds: "That's the basic principle at work with discovery, is that both sides should be able to know what all the evidence is going to be as presented in trial... not just the evidence that the other side is going to rely on, but the evidence that the other side has, even if they're not going to be relying on it." 

Ultimately, HR professionals should recognize that internal investigation findings won’t automatically be accepted as evidence. Both Hyde and Zaltzman agree that documentation, timelines, and fairness matter. As the Tribunal ruled: 

“The principle of proportionality helps the Tribunal avoid granting requests for production that are speculative, that amount to ‘fishing expeditions’ or that subject recipients to unnecessarily far-reaching and/or onerous searches for documents and information.”