Antonio Pileggi v. Champion Products Corp., 2009 HRTO 941

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Antonio Pileggi Applicant

-and-

Champion Products Corp. Respondent

Case resolution conference DECISION

Adjudicator: Mark Hart Date: June 30, 2009 Citation: 2009 HRTO 941 Indexed as: Pileggi v. Champion Products

APPEARANCES BY

Antonio Pileggi, Applicant ) On his own behalf Champion Products Corp., Respondent ) Danny Branoff, Representative

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.

2The Case Resolution Conference ("CRC") in this matter originally was scheduled to proceed on March 23 and 24, 2009. However, for the reasons set out in my previous Case Resolution Conference Decision, 2009 HRTO 343 (the "CRC Decision") both parties consented to the adjournment of those dates so that the applicant could obtain and disclose further medical information and documentation. The CRC was subsequently re-scheduled to take place on June 29 and 30, 2009.

3In the CRC Decision the applicant was directed to obtain certain medical documentation and information from two of his doctors and to disclose this material to the respondent and file it with the Tribunal by no later than June 9, 2009. This medical documentation included the original notes made by these doctors of appointments from the time of the applicant's surgery in December 2006 to date, as well as certain letters from these doctors responding to certain specific questions.

4By the required deadline, the applicant disclosed and filed letters from these two doctors responding to the questions raised, but did not disclose and file the original notes of these two doctors.

5At the hearing on June 29, 2009, the respondent requested that the Application be dismissed as a result of the applicant's failure to comply with my order to disclose. After hearing submissions from the parties, I gave the following oral decision:

1. The respondent has requested that the Application be dismissed due to the applicant's failure to produce his doctors' clinical notes as ordered in my previous decision in this matter and the doctors' failure to make themselves available for questioning and because the applicant is alleged not to have come to the Tribunal with clean hands. Having heard and considered the respondent's submissions, it is my view that I need to hear evidence from the parties before I can reach any conclusion as to whether this Application should be dismissed.

2. With regard to the impact on this proceeding of the failure to disclose the clinical notes and the doctors' failure to make themselves available for questioning, the respondent takes the position that this matter should be adjourned in its entirety until my order is complied with, while the applicant states that he made the requests to his doctors and provided everything that was given to him and thus that the matter should proceed.

3. I have some sympathy with the respondent's position, as it is entitled to receive and consider the doctors' clinical notes on what may be critical issues in this case as to when the applicant was authorized to return to work and on what basis. At the same time, there is a considerable amount of non-medical evidence that is relevant to the issues raised in this case and that I need to hear, and that in the end may have a significant impact on whether it is even necessary to probe further into the doctors' clinical notes.

4. In my view, given that this matter already has been adjourned once and the events at issue date back over three years now, the most fair, just and expeditious manner of proceeding is for me to hear the evidence from the non-medical witnesses during the hearing days scheduled for today and tomorrow, including any cross-examination on all matters excluding the clinical notes, and then to reserve my decision to consider whether it is necessary for me to receive further medical evidence. If I determine that it is necessary for me to receive further medical evidence, I will issue the appropriate order prior to making any final determination on the merits of the Application.

5. I appreciate that, if I do decide that further medical evidence is required to be disclosed, this may result in the splitting of the respondent's cross-examination of the applicant. However, in my view, this is not a sufficient basis for me to adjourn this proceeding in its entirety at this point when we have all the parties here and when there are many non-medical matters about which I require evidence.

6. With regard to the respondent's request for the T-4E slip relating to the applicant's EI earnings during 2006, I understand from the applicant that he cannot locate a copy of this document, but has provided the income tax return from that year showing how much EI he received. I understand that there may be an issue as to whether the applicant declared to EI the monies he received from the respondent during his sick leave, although it is not clear to me whether the applicant disputes that he did not declare these payments. In my view, I need to hear the applicant's evidence on this point as part of the hearing and I am not satisfied at this point that the respondent is prejudiced by the applicant's inability to locate the T-4E slip.

7. Accordingly, I will proceed to hear evidence in this Application. As discussed with the parties, I will conduct the questioning of the witnesses, starting first with the applicant and his witnesses. When I have completed my questioning, the parties will be afforded an opportunity to raise any further relevant questions for me to ask to elicit relevant evidence from their witnesses and the opposing party will be afforded an opportunity to raise any further questions through me to obtain clarification to ensure that they understand the evidence given. Cross-examination will be deferred until I have completed my questioning of all witnesses. In addition, I will be able to rely upon all documents filed with the Tribunal, whether or not they are referred to in oral evidence. All parties have consented to this process.

6After giving this oral decision, I proceeded to commence my questioning of the applicant. Unfortunately, the legal representative for the respondent became quite ill and was unable to continue. As a result, all parties consented to the adjournment of this matter to new dates to be scheduled in August. If the respondent's legal representative is not well enough to attend the hearing at that time, the respondent indicated that it would make arrangements for alternative legal representation.

7In addition, given that the matter has been adjourned, the applicant is directed to obtain a copy of the original clinical notes made by Dr. Sluzar and Dr. Bhatnagar in relation to appointments from the time of the applicant's surgery in December 2005 to date, and to disclose these documents to the respondent and file them with the Tribunal at the earliest possible time. If necessary, the applicant is directed to use a Tribunal summons, which can be obtained from the Registrar-Transition, to compel production of these documents.

8The applicant also is directed to obtain from Human Resources and Skills Development Canada his complete file in relation to any application he made for employment insurance benefits of any nature during the period from December 2005 to September 2007, and to disclose these documents to the respondent and file them with the Tribunal at the earliest possible time. Once again, if necessary, the applicant is directed to use a Tribunal summons to compel production of these documents.

ORDER

9For the reasons given I make the following order:

1. Within ten calendar days of the date of this CRC Decision, the parties shall advise the Tribunal of all of their availability to continue the hearing in this matter on the following dates: August 4, 7, 10, 11, 14, or 31 and September 1, 2, 3, 4, 14 to 18, 21 to 25, 28, 2009.

2. The applicant shall obtain a copy of the original clinical notes made by Dr. Sluzar and Dr. Bhatnagar in relation to appointments from the time of the applicant's surgery in December 2005 to date, and disclose these documents to the respondent and file them with the Tribunal at the earliest possible time.

3. The applicant shall obtain from Human Resources and Skills Development Canada his complete file in relation to any application he made for employment insurance benefits of any nature during the period from December 2005 to September 2007, and disclose these documents to the respondent and file them with the Tribunal at the earliest possible time.