Robinson v. Landmark Inn, 2010 HRTO 1393

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tanya Robinson Applicant

-and-

Landmark Inn Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: June 21, 2010 Citation: 2010 HRTO 1393 Indexed as: Robinson v. Landmark Inn

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on June 19, 2009. A hearing date in February 2010 was set. The applicant did not comply with her disclosure obligations under the Rules, and she requested an adjournment. Two Case Assessment Directions were issued, and a teleconference with the parties was held on February 8, 2010. The hearing date was changed to accommodate Code-related needs. The new dates for the hearing are July 6 and 7, 2010.

2The respondent has complied with its obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure.

3During the teleconference, the process and need for disclosure was explained to the applicant through her representative, Mr. Burns, and a date for disclosure was agreed upon. Mr. Burns indicated that the applicant would attempt to obtain legal representation within a reasonable time. Pursuant to a further Case Assessment Direction dated February 8, 2010, the applicant was required to provide her list of witnesses, statements of the witnesses' expected evidence, and copies of any materials or documents on which she intended to rely to the Tribunal, with confirmation that these materials had been delivered to the respondent, by March 30, 2010. She did not do so, and by Interim Decision 2010 HRTO 1056, she was ordered to do so by May 27, 2010.

4On May 20, 2010, Mr. Burns filed with the Tribunal and copied to the respondent a letter naming the applicant's intended witnesses (other than a witness identified as John Doe). The letter does not indicate what the witnesses are expected to say. The letter requests further evidence from the respondent.

5By letter to the Tribunal, copied to the applicant, counsel for the respondent urged that the Application be dismissed, as the applicant had not complied with her obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure. Counsel also indicated concerns about certain alleged actions of Mr. Burns.

6Section 40 of the Code states that the Tribunal "shall dispose of applications… by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the application". Fairness and justice require a balancing of the interests of the parties, in this case in complicated factual circumstances. The Tribunal's Rules of Procedure contemplate waiving or varying procedural requirements if appropriate (see Rules 1.1 and 5.2).

7In this case, the respondent has not received will-say statements for the applicant's proposed witnesses, and one of the witnesses is not named, although he is otherwise identified by reference to the alleged facts of the Application. The applicant has referred to certain documents, but has not produced them. It is not clear whether the applicant intends to rely on any documentary evidence.

8I agree that this leaves the respondent lacking information relevant to the preparation of its case. However, the applicant clearly lacks legal representation, and I am satisfied that she has certain Code-related needs that make it difficult for her to fulfil her procedural obligations. In the circumstances, I am not prepared to dismiss the Application without an attempt to hear evidence relating to the merits, but in fairness to the respondent, this hearing will be subject to some procedural restrictions.

9I will request the Registrar to reduce the hearing days scheduled to one, July 7, 2010, with that day to be restricted to an opportunity for the applicant to present her case. The respondent will not be required to present its case on that day. If further days of hearing are needed, these will be scheduled, and I will make any further procedural rulings needed to ensure fairness. For example, if the absence of will-say statements prejudices the ability of the respondent to cross-examine the applicant's witnesses, the respondent may be allowed to postpone its cross-examination to another day.

10The applicant is responsible for providing any documentary evidence that she wishes the Tribunal to consider to the Tribunal and to the respondent, no later than the day of the hearing, July 7, 2010. In this case, the applicant alleges that she was refused a service for reasons related to race and disability. Mr. Burns has mentioned medical reports; if the applicant wishes medical reports to be considered, she must produce them on or before July 7 2010.

11The applicant is also responsible for arranging the attendance on July 7 of any witness she requires. Failure to do so will result in that witness's evidence not being heard. If the applicant wants to ensure the attendance of a witness, summonses to witnesses may be obtained from the Registrar's Office.

12On behalf of the applicant, Mr. Burns has made a request for any security tape that might exist for the date of the alleged refusal of service, November 20, 2010. If there is any visual record in existence of the area in which the applicant spoke to staff of the respondent, this is arguably relevant to the Application and is part of the ongoing responsibility of the respondent to produce. The respondent is directed to inform the Tribunal by June 25, 2010 whether such a record exists, and if so, to give the Tribunal information that would allow suitable equipment to display the tape or disc at the hearing, if necessary.

13The applicant may wish to consult the Applicant's Guide and the Guide to Hearings before the Tribunal, as well as the Policy on Representation before the HRTO, all available on the Tribunal's website, www.hrto.ca, or from the Registrar.