Allen v. Mississauga (City), 2009 HRTO 122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michele Allen

Applicant

-and-

The Corporation of the City of Mississauga, Garry Morden, John McDougall and Brian Walsh

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: February 5, 2009

Citation: 2009 HRTO 122

Indexed as: Allen v. Mississauga (City)

1This is an Application brought pursuant to section 53(3) of the Human Rights Code, RSO 1990, c.H-19, as amended. This Interim Decision deals with preliminary requests for Orders made by the respondents.

2The applicant alleges that she was discriminated against by the respondents on the basis of sex and disability.

3The corporate respondent, City of Mississauga (the “City”), seeks an Order authorizing it to release any medical documentation relating to the applicant held by its Employee Health Services Division to its legal department. The City states that this information is required to respond to the Application. The applicant filed no submissions with respect to this request.

4In the circumstances, where the applicant has not made any objections to disclosure and the materials sought appear arguably relevant to the issues in dispute, the Tribunal grants the request. The Tribunal orders that the City is authorized to release any medical documentation relating to the applicant held by its Employee Health Services Division to its legal department. A copy of any documents released pursuant to this Order shall be provided to the applicant immediately.

5The City also seeks an Order requiring the applicant to immediately provide detailed particulars of the alleged discrimination as well as any documents arguably relevant to the issues in dispute in the Application. The applicant filed no submissions with respect to this request.

6Rule 9 of the Rules of Procedure for Transitional Applications requires the parties to deliver to each other the facts upon which they intend to rely as well as any documents arguably relevant to the issues in dispute on timelines established in the Rules. Rule 3 provides for the following consequences for failure to disclose:

3.3 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

3.4 Where a fact or issue is not raised in the Application (Form A or Form TR-1), complaint, Response (Form B or Form TR-2), the Response to the complaint, or in a supplemental statement of facts and issues filed after mediation, the Tribunal may refuse to allow the party to present evidence or make representations about the fact or issue unless satisfied there would be no substantial prejudice and no undue delay to the proceedings.

7The failure or not of the applicant to comply with her obligations under Rule 9 will be dealt with by the Vice-Chair or Member presiding at the Case Resolution Conference. This request for Order is refused.

8In their submissions the respondents also raised two related preliminary issues: a request to dismiss because the complaint underlying the Application is out of time, and alternatively, a request that one of the individual respondents be removed as a respondent and the allegations made against him dismissed on the basis that he passed away in October 2008.

9The parties should be prepared to deal with these preliminary issues as well as the merits of the Application at the Case Resolution Conference.