Seema Saadi v. Audmax Inc., and Maxcine Telfer, 2009 HRTO 1022

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Seema Saadi

Applicant

-and-

Audmax Inc., and Maxcine Telfer

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: July 10, 2009

Citation: 2009 HRTO 1022

Indexed as: Saadi v. Audmax

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 17, 2008, alleging discrimination in employment on the grounds of race, colour, ancestry, place of origin, ethnic origin, disability, creed and sex. The respondents filed a Response on November 18, 2008, and the applicant filed a Reply on December 1, 2008.

2On February 19, 2009, the Tribunal sent the parties a Confirmation of Hearing, setting June 1 - 4, 2009 as the hearing dates in this matter. Following a timely request by the respondents, the Tribunal re-scheduled the hearing for July 21 - 24, 2009. The Confirmation of Rescheduled Hearing was sent to the parties on March 12, 2009.

3On April 1, 2009, the applicant provided the respondents with all arguably relevant documents, as required by Rule 16.1 of the Tribunal’s Rules. On April 30, 2009, the applicant filed a Request for Order During Proceedings (RFOP) arguing that the respondents were more than four weeks overdue in meeting their disclosure obligations and seeking an Order compelling production by the respondents. On May 4, 2009, the applicant withdrew her RFOP after receiving the respondents’ disclosure pursuant to Rule 16.1. It does not appear, however, that the respondents filed their statement of delivery with the Tribunal, as required by the Rules.

4On May 7, 2009, counsel to the applicant corresponded with respondents’ counsel alleging deficiencies in the completeness of the respondents’ documentary disclosure and asking for particulars regarding the performance-related allegations in respect of the applicant. Counsel asked for the additional productions and particulars to be furnished by June 1, 2009, so the applicant could meet the Rule 17 disclosure deadline of June 8, 2009. On May 15, 2009, applicant’s counsel again corresponded with respondents’ counsel enclosing an additional arguably relevant document, and seeking respondents’ consent to remove Margaret Andoseh as a personal respondent.

5On June 8, 2009, the applicant filed her witness list and will-says, and a list of documents and copies thereof on which she intends to rely at the hearing, pursuant to Rule 17, which requires hearing documents to be delivered to the other parties and filed with the Tribunal 45 days prior to the first day of hearing. No documents were received from the respondents.

6On June 15, 2009, the respondent, Ms. Telfer, wrote to counsel for the applicant, advising that the respondents were no longer represented by their previous counsel and were in the process of seeking new representation. Ms. Telfer asked for the applicant’s “indulgence” in agreeing to “put this matter in abeyance, so that we can collect all documentations that you have requested and present them to you before the end of June 2009.” The letter also disclosed six individuals the respondents intend to call as witnesses. No witness statements were provided.

7On June 18, 2009, the applicant filed a RFOP asking for the following orders:

(a) That the respondent Margaret Andoseh be removed as a personal respondent.

(b) That the respondents provide a number of particulars related to allegations contained in their Response.

(c) That the respondents provide witness statements for their six named witnesses.

(d) That the respondents produce a number of documents the applicant alleges are arguably relevant to the Application.

8The respondents had 14 days to respond to the applicant’s RFOP, which should have been filed by July 2, 2009. It is now more than a week since the deadline and no responding submissions have been received.

9A Tribunal application is a legal proceeding. It is each party’s duty to accord the Tribunal process the necessary attention to comply with its procedural directives. I draw the parties’ attention to Rule 5 of the Tribunal’s Rules, which provides the Tribunal with discretionary powers to address non-compliance with the Rules. The Tribunal’s discretionary powers are to be administered in a manner which is fair, just and expeditious.

10It is now nearly four weeks since the respondents advised that they were seeking legal representation. It is ten days since the “end of June 2009”, when the respondents promised to meet their disclosure obligations. The hearing date is fast approaching and the respondents are well beyond the deadlines for disclosing documents and witness statements. Failure to comply with the Tribunal Rules can not only result in the offending party being curtailed in their ability to introduce evidence and make arguments at the hearing, but it can also impede the ability of the opposing party to effectively prepare for the hearing. When failure to comply with the Rules leads to obstacles and delays, the fair, just and expeditious operation of the Tribunal process is adversely affected. I find that the respondents are in breach of the pre-hearing procedural requirements and order them to comply immediately with their disclosure obligations.

11Regarding the issue of particulars, Rule 5.7 provides that a possible consequence for a party which does not set out specific facts in its application or response is that the Tribunal may not allow the party to introduce evidence with respect to those facts. It reads as follows:

Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 17.2 or 18.2, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay in the proceedings.

12The obligation to plead facts with sufficient particularity is to allow the opposing party to challenge and respond to the evidence with allegations and evidence of their own. Where it is impossible to ascertain the specifics of the facts being alleged, such as date, time, place, and persons involved, the Tribunal will likely find that the allegations lack sufficient particularity. The respondents should be aware that they may be prevented from relying on facts or introducing evidence about allegations that have been pleaded with insufficient particularity. Any disputes about the quality and sufficiency of particulars may be addressed at the hearing and I will determine them at that time.

ORDER

13I order the following:

(a)That the respondents deliver to the applicant and file with the Tribunal forthwith witness statements for the six witnesses it intends to call at the hearing, and copies of the documents listed at paragraph 4 of the applicant’s RFOP.

(b)The personal respondent Margaret Andoseh is removed as a respondent in this matter.

14The parties should be prepared to proceed on the first day of the hearing with opening submissions, and the applicant shall begin presenting her evidence.