HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Tearne

Applicant

• and-

The Corporation of the City of Windsor and

Proactive Ergonomic Concepts Inc. o/a Pinnacle Ergonomics

Respondents

INTERIM Decision

Adjudicator: Ena Chadha

Date: August 27, 2010

Citation: 2010 HRTO 1763

Indexed as: Tearne v. Windsor (City)

1This Application was filed on July 16, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination with respect to employment on the basis of age.

2The respondent, The Corporation of the City of Windsor (the “City”) filed its Response on September 18, 2009. The respondent, Proactive Ergonomic Concepts Inc. o/a Pinnacle Ergonomics (“Proactive”) filed its Response on September 22, 2009.

3A hearing in this matter is scheduled for November 23, 24 and 25, 2010.

BACKGROUND

4Pursuant to the Tribunal’s Rules of Procedure (the “Rules”), the applicant and the City exchanged copies of their arguably relevant documents and filed with the Tribunal confirmation of their lists of documents and Statement of Delivery. The Tribunal has received no communications or correspondence from Proactive in this regard.

5On July 27, 2010, the applicant filed a Request for Order requiring Proactive to produce its list and copies of its arguably relevant documents. In the Request, the applicant notes that counsel previously corresponded with Proactive about the outstanding disclosure. The applicant has retained an expert and requires Proactive’s arguably relevant disclosure (specifically, all notes and records regarding the development and implementation of strength and agility testing) for the purposes of preparing an expert report. The applicant requires this information immediately in order to comply with the Tribunal’s Rules with respect to filing expert reports.

6As of the date of this Interim Decision, Proactive has not filed a Response to the Request and the time for filing submissions has elapsed.

DECISION

7Pursuant to Rule 16.1, all arguably relevant documents in the possession of a party must be disclosed to other parties no later than 21 days after the Tribunal sends a Confirmation of Hearing. Proactive has failed to comply with this requirement.

8Rule 16 also provides that no party may rely on or present any document not included on a document list and provided to the other parties and the Tribunal, except with the permission of the Tribunal. Failure to comply with Rule 16 may result in the Tribunal refusing permission to introduce documents or rely on evidence of not disclosed. Further, Rule 5.6 states that when a party fails to deliver materials to another party as required by the Rules, the Tribunal may refuse to consider the material or may take any other action it considers appropriate.

9In light of the allegations contained in the Application, the Responses and the anticipated expert evidence, it appears that the documents sought by the applicant are arguably relevant and should have been produced several months ago. As such, the Tribunal grants the applicant’s Request for disclosure and orders Proactive to immediately comply with its disclosure obligations under Rule 16.

10The parties are also reminded of their ongoing disclosure obligations under the Rules and of the possible consequences of non-compliance.

11I am not seized.