Cormie v. Laurentian University, 2008 HRTO 44

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Allison Cormie

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Laurentian University, Herman Falter, Kathryn Molohon, Pat Julig, Robert Segsworth, and Norma MacRea

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: July 16, 2008

Citation: 2008 HRTO 44

Indexed as: Cormie v. Laurentian University

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto ON M7A 2C7 Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Allison Cormie, Complainant ) Geri Sanson, Counsel

Ontario Human Rights Commission ) Eric del Junco, Counsel

Laurentian University, Herman Falter ) Dean T. Palmer, Counsel Kathyn Molohon, Pat Julig ) Robert Segsworth, Norma MacRea, Respondents )

INTRODUCTION

1This decision addresses the submission by the respondents that the Ontario Human Rights Commission’s disclosure and hearing brief do not comply with the Tribunal’s Rules of Practice. The respondents state that the Commission’s disclosure consists of over 2,000 loose-leaf pages:

…contained in 17 file folders with handwritten labels which provide no assistance in attempting to process and digest these materials. Furthermore, in several cases the documents do not appear to be placed in the correct folder. It is not clear how the folder names relate to the contents of the folders. Many documents are undated. Many documents are illegible. Several documents appear in more than one place. Finally, it is often difficult to determine where the documents come from and who has authored the documents.

They ask that the Commission be ordered to prepare the documentary disclosure in a “coherent and rational manner, which would include the preparation of an index of documents to be organized in a chronological manner ensuring that all documents are dated, legible and identifiable”.

2The respondents also object to the hearing brief, which they say does not contain “a statement of all facts upon which the Commission intends to rely” as required by Rule 57. They note that paragraph 9 of the hearing brief states, “[a]s outlined in the complaint, the Case Analysis and the documents disclosed to the other parties, Dr. Cormie was subjected to harassment and discrimination at work because of her gender from the time she commenced her employment with Laurentian…” [emphasis added], followed by general allegations that do not include details of alleged events. They ask that the Commission be ordered to provide a hearing brief that complies with Rule 57.

DISCLOSURE

3Disclosure is not provided to the Tribunal. However, neither the Commission nor the complainant disputes that the disclosure was in the form alleged by the respondent. Indeed, counsel for the complainant sought and obtained an extension of the time to file her client’s hearing brief, on the basis, among other reasons of the fact that she and her client “had not anticipated that the documents from the Commission would be organized with neither an index, nor organization of the documents in chronological order. As a result, the sorting of the documents and determining whether there are any additional documents to come from Dr. Cormie has become a significant task”. She takes the position, however, that there is no requirement under the Rules that disclosure documents be organized and indexed.

4The Commission asserts that there is no basis in the Rules for the order the respondents seek. Counsel notes that most of the disclosure material has been in the respondents’ possession for many years, and that the complainant sent five detailed letters of complaint to the respondent that attached various other documents.

5The Commission and complainant are correct that there is no express requirement in the Rules governing the format of disclosure. It is, however, implicit in the Rules that documents be legible and the nature of the documents identified if this is unclear on their face. To the extent the Commission’s disclosure in this case does not meet these requirements, it is in breach of the Rules.

6In this case, given the nature of the allegations, the volume of documentary disclosure, and the apparent lack of any organization in the Commission’s first disclosure package, I find that it would also be fair, just and expeditious to require each party to produce its disclosure in chronological order, with an index identifying each document by nature and date. This will allow each party to ensure that it has reviewed all relevant documents, to compare the disclosure against the documents in its possession, and to ensure that all parties have the same documents. The Commission will be required to re-submit its disclosure in this format. There should be only one copy of each document.

HEARING BRIEF

7The Commission and complainant assert that the Commission has met the requirements of Rule 57 through the reference in the pleading to various allegations in other documents including the complaint, the case analysis, and five complaint letters written by the complainant between 1997 and 1999. They also assert that the respondent’s objection should only be raised and determined after the respondent files its own hearing brief.

8The purpose of the requirement in Rule 57 that all material facts be set out is not merely to fill in gaps in an incomplete factual record. Rather, it is to advise the other parties and the Tribunal of what each party intends to prove at the hearing and how it will argue that these facts support its position on alleged violations of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The Rules require each party to set out its allegations in an organized, summary manner so that they provide full notice to the other parties, are clear and may be readily referenced throughout the hearing process. Complete pleadings assist in determining what is actually in dispute, and enable the Tribunal to decide how the hearing will proceed with full knowledge of the facts that each party intends to prove.

9The Commission’s hearing brief does not comply with Rule 57. A reference to a mass of other documents that set out various allegations complies with neither the spirit nor the letter of the Rules. In light of the Commission’s complete failure to meet the requirements of Rule 57, I find that this is an appropriate case to make an exception to the general requirement that a party file its hearing brief prior to raising preliminary issues. To do otherwise would be to require the respondents to respond without adequate knowledge of the case the Commission intends to present.

10Setting tight timelines for the Commission to remedy the deficiencies and giving the respondents a minimal extension to the deadline for their hearing brief, currently set for August 15, 2008, avoids delays in the hearing process and makes it unnecessary to reschedule the Pre-Hearing Conference Call set for September 12, 2008.

ORDER

11The Tribunal makes the following order:

1. By August 1, 2008, the Commission shall provide the other parties with disclosure that is in chronological order, with an index describing each document and its date.

2. The Commission shall file a new hearing brief by August 1, 2008, that includes a statement of facts that outlines in narrative form, in consecutively numbered paragraphs, all material facts upon which it relies, in accordance with Rule 57. It shall not make allegations through the incorporation by reference of other documents.

3. The complainant may make any amendments to her hearing brief that flow from the Commission’s amendments by August 11, 2008.

4. The respondents shall serve and file their hearing brief and make disclosure by August 29, 2008. The disclosure shall be in chronological order, with an index describing each document and its date.

5. Any party may exchange and file a reply by September 11, 2008.