Vetricek v. 6425518 Canada Inc. (Algonquin Careers Academy), 2009 HRTO 2132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve Vetricek

Applicant

-and-

6425518 Canada Inc. (Algonquin Careers Academy) and Des Soye

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: December 9, 2009

Citation: 2009 HRTO 2132

Indexed as: Vetricek v. 6425518 Canada

1This is an Interim Decision in respect of an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of disability. The matter is scheduled for hearing on December 15 and 16, 2009. This Interim Decision deals with the applicant’s request for disclosure and the respondent’s request for dismissal without a hearing or, in the alternative, for an adjournment.

REQUESTS FOR ORDERS

2On October 22, 2009, the applicant filed a Request for an Order During Proceedings (“RFOP”) requesting production of documents identified by the applicant as “1) financial data, 2) personal information of students/employees, 3) student registration statistics, 4) student registration budgets”. The applicant indicated that he needed “to see the statistics he has versus my statistics”. He also indicated that he submitted all of his letters from previous students to the respondent and expected the respondents to do the same. The applicant also refers to the personal respondent having stated that he had letters from employees.

3The respondents’ Response to this Request for production was due on November 3, 2009. No response was filed at the required time, but a letter to the Tribunal, dated November 23, 2009, from the respondents acknowledge the Request and states that none of the documents requested “have any relation to” the Application.

4On November 6, 2009, the applicant filed an RFOP requesting to amend the Application in respect of the requested remedy. The respondents’ Response to the RFOP was due on November 20, 2009. No Response was filed.

5On November 19, 2009, the applicant filed an RFOP requesting that the respondents comply with Rule 17 of the Tribunal's Rules of Procedure and provide a complete witness list and witness statements for each witness the respondents intend to call. By way of correspondence dated November 5, 2009 and attached to her RFOP of November 19, 2009, and copied to the respondents, counsel for the applicant raised concerns over the respondents’ failure to comply with the Rules, noted that the respondents had listed only one witness, and had provided no witness statements. Counsel advised the personal respondent that if he intended to provide evidence himself at the hearing, he must include himself on the witness list and also provide a witness statement. Counsel requested that the personal respondent advise her as soon as possible if he intended to provide evidence at the hearing.

6On November 24, 2009, the respondents filed an RFOP which they indicated was a request for particulars. However, no information was given in regard to what particulars were sought. The RFOP requests that the Tribunal “determine the preliminary issues in this matter and dismiss the application for a want of jurisdiction”. Attached to the RFOP was a will-say statement for the personal respondent, and a letter dated November 23, 2009 stating that the respondents will call only the personal respondent as witness. As this letter addresses the subject matter of the applicant's RFOPs of October 22, 2009 and November 19, 2009, it appears that the letter is the response to those RFOPs.

PRODUCTION/ WITNESS STATEMENTS

7It appears that all matters have been dealt with except the applicant's RFOP of October 22, 2009. It is well-established that the basic principle in determining a production request is whether the requested documents are “arguably relevant” to the issues in dispute in the proceeding. As noted in Nassiah v. Peel Regional Police Services Board, 2006 HRTO 18 at para. 8, this is a relatively low threshold for the requesting party to meet. However there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry), at para. 38.

8The applicant has described the documents requested as “1) financial data, 2) personal information of students/employees, 3) student registration statistics, 4) student registration budgets”. These are very broad descriptions, and a great many documents that are not relevant to the Application could fit within these descriptions. The applicant, who was not represented at the time of the Request, has not narrowed the description of what he is seeking.

9From the material filed, it appears that the reasons given for the termination of the applicant's employment were “restructuring” (per the letter of termination) and student enrolments that were “below expectations” (per the Response). It is not obvious to me on the material filed that anything other than financial data relating to restructuring and student registration statistics for the period during which the applicant was employed by the respondents is arguably relevant to his Application.

10The respondents have given no reasons why these documents are not arguably relevant. The respondents are ordered to immediately file with the Tribunal copies of documents that comprise financial data related to restructuring and documents that reflect student registration statistics for the period during which the applicant was employed by the respondents.

11The Tribunal will hear from the parties in regard to whatever other production issues are outstanding and make whatever further rulings are necessary concerning production at the hearing.

REQUEST TO DISMISS

12In its November 24, 2009 RFOP, the respondents request that the Tribunal dismiss the Application for want of jurisdiction. It is only in very rare cases, in which the facts and issues are plain and obvious, and clearly outside the Tribunal’s jurisdiction to decide, that the Tribunal may dismiss on the ground that an Application fails to disclose a breach of the Code without giving an opportunity to make oral submissions. In this case, there is no clear bar to the Tribunal’s jurisdiction. The Request to dismiss in the respondent’s RFOP of November 24, 2009 is denied.

REQUEST TO ADJOURN

13The Confirmation of Hearing stated that requests for adjournments would be dealt with according to the Tribunal’s “Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments.” The Information Bulletin provides that requests to reschedule must be made within five days of receiving the Notice of Hearing, and goes on to state the following regarding requests for adjournment:

Requests for adjournment, particularly last minute requests for adjournments are a significant impediment to fair and timely access to justice.

The Tribunal’s approach to scheduling and rescheduling mediations and hearings is designed to give the parties a fair opportunity to find suitable dates. Therefore, the Tribunal discourages adjournment requests, and will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

The Tribunal will not automatically grant adjournments even when all parties consent. Consent of all parties will be a factor which the Tribunal will consider where a request to adjourn a mediation or hearing is made, but it is not the only, or even the main factor.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. If practical, they should contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing. Alternative dates for mediation must fall within five (5) months of the date of the Notice of Application. Alternative dates for a hearing must fall within five (5) months of the date of the Confirmation of Hearing.

The party making the request should contact the Registrar and provide the reason for the request and the alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by telephone or email.

14In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal stated as follows:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

15The only reasons the respondents have cited in support of this Request are unexplained “scheduling conflicts”. The respondents have had ample opportunity to prepare the case. There is no indication that they did not have sufficient notice of the hearing date. The respondents have not mentioned anything extraordinary about their circumstances. The Request is therefore denied.

16The hearing will proceed on December 15 and 16, 2009. Any outstanding procedural and evidentiary matters will be dealt with at the beginning of the hearing.