Knibbs v. Brant Artillery Gunners Club, 2009 HRTO 1601

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Knibbs

Applicant

-and-

Brant Artillery Gunners Club, William Bourne, Elaine Bourne and Ray Paine

Respondents

A N D B E T W E E N:

Stephanie Long

Applicant

-and-

Brant Artillery Gunners Club, William Bourne, Elaine Bourne and Richard Calder

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 2, 2009 Citation: 2009 HRTO 1601 Indexed as: Knibbs v. Brant Artillery Gunners Club

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request for an adjournment of the hearing, the applicants’ request for production of documents, and the order in which evidence shall be heard at the hearing.

ADJOURNMENT REQUEST

2On July 8, 2009, the Tribunal issued a Confirmation of Hearing to the parties for File No. 2009-00735-I, which informed them that the hearing is scheduled for October 6, 7, 8 and 20, 2009.

3On September 8, 2009, the Tribunal issued an Interim Decision, 2009 HRTO 1419, which ordered that File Nos. 2009-00735-I and 2009-02215-I shall be consolidated and heard together on October 6, 7, 8 and 20, 2009, and any further scheduled dates as need be.

4The Interim Decision also ordered that the individual respondents Linda Conrad and Claude Alain be removed from File No. 2009-00735-I.

5Between September 9 and 29, 2009, the respondents sent the Tribunal several e-mails, which requested that the Tribunal adjourn the hearing for two reasons. First, Ms. Conrad and Mr. Alain were removed as respondents and have now appeared on the applicants’ list of witnesses, despite being closely involved in the employment decisions related to the applicants. As a result of this turn of events, the respondents state that they need more time to prepare for the hearing. Second, the respondents attempted to disclose its list of witnesses by the disclosure deadline, but the e-mail “did not go through.” As a result, the respondents need more time to get their witnesses “accredited”.

6The Confirmation of Hearing informed the parties that requests for adjournments will be dealt with in accordance with the Tribunal’s Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments. The Information Bulletin provides that requests to reschedule a hearing must be made within five (5) days of receiving the Confirmation of Hearing, after which requests for adjournments will only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

7The reasons that the respondents provide for requesting an adjournment are not “extraordinary” circumstances, which justify delaying the hearing. Therefore, the request is denied.

8With respect to hearing the respondents’ witnesses, it is not clear to me from the materials filed by the parties whether the respondents have fully complied with Rule 17 of the Tribunal’s Rules of Procedure on disclosure of witnesses. Accordingly, this matter will be dealt with as a preliminary issue on the first day of the hearing.

9The parties are directed to review Rule 17, as well as Rule 5.7, which states that where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in accordance with the Tribunal’s Rules on disclosure of documents and witnesses, 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 to the proceedings.

PRODUCTION REQUEST

10The applicant Knibbs filed a Request for an Order During Proceedings on August 28, 2009, which requests that the Tribunal order that the respondents produce a number of arguably relevant documents, which were not disclosed by the respondents to her. Specifically, she is requesting the following:

1. All the organization respondent’s bank statements verifying expenses and documents, as well as returned cheques (bounced or not) written to any person working for the organization respondent from January 1, 2007, to December 31, 2008.
2. The organization respondent’s financial statements prepared by its accountant from January 1, 2006. to December 31, 2008.
3. The organization respondent’s tax returns for 2007 and 2008.
4. All the organization respondent’s time cards, schedules, time books and other documents for all persons working for the organization respondent from January 1, 2007. to December 31, 2008.
5. The organization respondent’s payroll records for all persons working for it from January 1, 2007. to December 31, 2008.
6. All the organization respondent’s contracts for events in the upstairs of the club from January 1, 2007. to December 31, 2008.
7. The organization respondent’s coiled notebook that provides an accounting of Nevada tickets by employees on each shift from January 1 to December 31, 2008.
8. Any documents related to the investigation of the allegations made against the applicant Knibbs that she stole 2005 Nevada tickets and of monies missing from the Nevada and/or 6/49.
9. The organization respondent’s articles of incorporation or other documentation by which the organization respondent came into existence.
10. The name of all banks where the organization respondent has accounts, the bank account numbers, and an executed consent to release in order to allow the applicant Knibbs to obtain records from the banks with respect to those accounts.
11. The names of all persons or organizations preparing financial statements or tax returns for the organization respondent, and an executed consent to release in order to allow the applicant Knibbs to obtain records from those persons or organizations.

11The applicant Knibbs further requests that, in the event that the respondents fail to produce the aforementioned documents, the Tribunal order the banks, the persons and organizations mentioned in 10. and 11., and the Canada Customs and Revenue Agency, to produce them.

12The applicant Knibbs submits that the documents are arguably relevant because the respondents are relying on operational need and undue hardship with respect to the finances and expenses of the organization respondent in order to justify their conduct towards her. She further submits that she requested that the respondents disclose the aforementioned documents, but they refused on the basis that the bank records and cheques are tied up in a criminal matter, and they will only provide payroll records to Revenue Canada.

13The respondents did not file a Response to a Request for an Order During Proceedings, but sent the Tribunal an e-mail that states that it is fiscally impossible for them to copy and mail all the information that the applicant Knibbs is requesting. The respondents suggest that the applicant Knibbs’ legal counsel attend their premises to inspect and copy any relevant documents. The applicant Knibbs, in response, states that it is the respondents’ obligation to incur the cost of photocopying and disclosing all arguably relevant documents.

14In my view, the documents listed in 1. to 9. above (assuming they all exist) are arguably relevant because the Response to the Application relies on operational needs, financial constraints, and dishonest and potentially illegal activities by the applicant in the workplace as a non-discriminatory explanation for the respondents’ conduct. Given the proximity of the hearing date, and the respondents’ submission that it cannot afford to photocopy and mail the documents, I order the respondents to produce the original documents in an organized fashion at the first day of hearing for inspection by the applicants and their legal counsel. I will deal with any further issues related to these documents at the hearing.

15I draw the parties’ attention to subsection 43(9) of the of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which states: “The Tribunal may draw an adverse inference from the failure of a party to comply, in whole or in part, with an order of the Tribunal for the party to do anything under a rule made under clause (3)(f).” Subsection 43(3)(f) of the Code provides that the Tribunal may make rules, which, among other things, authorize the Tribunal to require a party to produce documents. Rule 1.7(k) of the Tribunal’s Rules of Procedure states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may, on the request of a party, direct another party to adduce evidence.

16I am not prepared at this stage of the proceeding to make a decision with respect to the applicant Knibbs’ request that the Tribunal order the respondents to produce executed consents to release with respect to third parties, or that the Tribunal order those third parties to produce arguably relevant documents.

ORDER OF EVIDENCE

17In the Tribunal’s previous Interim Decision, 2009 HRTO 1419, the parties were directed to provide submissions on the order in which evidence shall be heard at the hearing.

18The applicants filed submissions on September 22, 2009, which proposed that the evidence of both applicants be heard first, followed by the evidence of the respondents, rather than splitting the evidence of the two applicants. The respondent did not file any submissions on this issue. I agree with, and see no reason not to follow, the applicants’ proposal.

ORDER

19The Tribunal makes the following Orders:

(a) The respondents’ request for an adjournment of the hearing is dismissed.

(b) The respondents shall produce the original documents itemized as 1. to 9. in paragraph 10 above on the first day of the hearing.

(c) At the hearing, the evidence of both applicants shall be heard first, followed by the evidence of the respondents.