Antonio Pileggi v. Champion Products Corp., 2009 HRTO 316

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antonio Pileggi Applicant

-and-

Champion Products Corp. Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: March 18, 2009 Citation: 2009 HRTO 316 Indexed as: Pileggi v. Champion Products

1This is an Application dated August 11, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission on April 17, 2006. The Case Resolution Conference (hearing) in this matter is scheduled to proceed on March 23 and 24, 2009.

2The purpose of this Interim Decision is to address the respondent’s requests for production of documents and for an adjournment of the Case Resolution Conference, and also to address certain other case management matters in advance of the hearing.

Request for Production

3On March 16, 2009, one week before the scheduled commencement of the hearing, the respondent requested production of a number of categories of documents and information, some of which have no arguable relevance to the matters at issue in this Application.

4For example, the respondent has requested the applicant’s complete work records from any and all previous employers in the three years preceding his employment with the respondent. This has no arguable relevance to the applicant’s allegation that he was dismissed from his employment with the respondent because of disability, or to any matter raised in the respondent’s Response to the Application. The respondent also requests details of exactly what the applicant did and how he spent his two vacation periods during his employment with the respondent. Once again, this has no arguable relevance to the matters at issue in this Application.

5The respondent also has requested the applicant’s complete work records from any employment after his operation, including complete details of his job functions. This request is over broad. I also am concerned about the timing of the request, given that the applicant was to have made disclosure to the respondent by December 27, 2008 and so the respondent would have known for over two months now that these documents were not disclosed, but took no steps to raise this issue until the week before the hearing.

6In my view, it is arguably relevant for the respondent to know what job duties the applicant has performed since his employment with the respondent was terminated, but I believe that this can be addressed in the applicant’s oral testimony at the hearing. If the applicant has or can obtain any documents pertaining to his job duties, such as a job description, he is directed to bring those documents to the hearing for disclosure to the respondent.

7The respondent has requested details of any and all efforts made by the applicant to find employment since his operation, including specifically any contacts with his former employer Home Depot. Any documents relating to these efforts are arguably relevant, and should already have been disclosed by the applicant. If they have not already been disclosed, the applicant is directed to bring these documents to the hearing.

8The respondent has requested the applicant’s complete Employment Insurance records together with any and all monies received by him from any other source since his operation, such as his disability or worker’s compensation. The respondent is entitled to production of records showing the amount of Employment Insurance or other benefits received by the applicant for any period for which he is claiming compensation, and the applicant is directed to bring these records to the hearing. The respondent should note, however, that it is not entitled to a deduction for receipt of these benefits from any award of compensation that may be made. The applicant also is directed to bring his income tax returns and notices of assessment for the 2006 and 2007 taxation years as well as any T-4 slips for income received during the 2008 taxation year.

9Finally, the respondent has requested the applicant’s complete medical and hospital records to establish his claim that he was medically fit for work before and after the operation. Once again, this request is over broad and made very late. The applicant has indicated that he has disclosed or will disclose medical reports from his cardiologist, his psychiatrist and other medical reports. If this material has not already been disclosed to the respondent, the applicant is directed to bring this material to the hearing together with any other medical reports or records pertaining to the operation and his fitness to work that are already in his possession. Based upon a review of this material at the hearing, a determination will be made as to whether any further production is required.

Request for Adjournment

10On March 16, 2009, the respondent also requested an adjournment of the Case Resolution Conference. The basis for this request is that the company consulted with three lawyers whose names were provided by the Law Society’s referral service, and each required a retainer that the respondent says it cannot afford due to a downturn in its business. No information is provided as to when the names of these lawyers were obtained, or when they were consulted. The respondent then states that it started preparing for the hearing itself and discovered that it required certain documents from the applicant as addressed above. Once again, no information is provided as to when the respondent started preparing for the hearing or why it took over two months to determine that documents it requires had not been disclosed by the applicant.

11The applicant opposes the adjournment request on the basis that this matter has gone on long enough, the applicant having filed his original complaint with the Commission almost three years ago. The applicant further states that he too cannot afford to retain legal counsel, but notes that the letter from the respondent came from someone representing himself as being from the respondent’s legal department, which should be more than capable to argue the case.

12The request for an adjournment is denied and the hearing will proceed as scheduled on March 23 and 24, 2009. While all parties are entitled to be represented by legal counsel, they need to take steps to exercise this entitlement in a timely manner, and there is no evidence that the respondent has done this. Further, there is no explanation provided by the respondent as to when it started to prepare for the case on its own, or why it took over two months to make its request for production. If it appears at the hearing that any party is actually prejudiced by not obtaining earlier disclosure, then the Tribunal can consider that issue at the hearing and make any order as may be required to address any prejudice.

Case Management

13In its letter dated March 16, 2009, the respondent states that it cannot determine which documents it must find and produce from its records until after it has examined the applicant’s records.

14The respondent has been aware since April 2006 that the applicant is alleging that his employment was terminated because of his surgery and subsequent recovery time. In its response to the complaint filed with the Commission in August 2006, the respondent alleges variously that the applicant had poor relations with his subordinates, that funds were loaned to the applicant while he was off work for his surgery and recovery, and that the applicant was terminated for shortage of work, which the applicant himself requested be shown as the reason for his termination.

15Under the Tribunal’s Rule of Procedure, the respondent is obliged to make disclosure of all arguably relevant documents in its possession. The respondent was expressly informed of this obligation in the Tribunal’s letter dated December 11, 2008 and advised that this disclosure needed to be made by January 13, 2009. To the extent that the respondent has any documents in its possession relating to the applicant’s employment, his time off for surgery and recovery, his alleged poor relations with subordinates, the alleged loans, and the reason for termination of the applicant’s employment, these documents were known by the respondent to be arguably relevant to the matters at issue in this application and ought to have been disclosed to the applicant.

16As indicated in the Tribunal’s December 11, 2008 letter, the respondent is directed to bring to the hearing on March 23, 2009 a copy of all documents in its possession that it intends to rely upon and a list of all witnesses it intends to call together with a brief summary of their anticipated evidence.

17To the extent that any documents that either party seeks to rely upon have not already been disclosed to the opposing party in accordance with the Rules, the Tribunal will consider the application of Rule 3.3 which states:

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.

Order

18For these reasons, I make the following order:

1. the request for an adjournment is denied and the Case Resolution Conference will proceed as scheduled on March 23 and 24, 2009;

2. the applicant shall bring the following materials to the hearing for disclosure to the respondent:

   i. any documents the applicant has in his possession or can obtain pertaining to his job duties since the termination of his employment with the respondent, such as a job description;

   ii. any documents relating to the efforts made by the applicant to find employment since his operation, including specifically any contacts with his former employer Home Depot;

   iii. records showing the amount of employment insurance or other benefits received by the applicant for any period for which he is claiming compensation, and income tax returns and notices of assessment for the 2006 and 2007 taxation years as well as any T-4 slips for income received during the 2008 taxation year;

   iv. medical reports from his cardiologist, his psychiatrist and other medical reports referenced as “supporting documentation” in the applicant’s letter dated December 15, 2008 and any other medical reports or records pertaining to the operation and his fitness to work that are already in his possession.

3. the respondent is directed to bring to the Case Resolution Conference on March 23, 2009 a copy of all documents in its possession that it intends to rely upon and a list of all witnesses it intends to call together with a brief summary of their anticipated evidence.