Keith Goodale v. Assured Parkway Collision Inc, 2010 HRTO 1814

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Keith Goodale Applicant

-and-

Assured Parkway Collision Inc Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: September 2, 2010 Citation: 2010 HRTO 1814 Indexed as: Goodale v. Assured Parkway Collision

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on July 2, 2009. A copy of the Application was sent to the respondent on May 3, 2010. In the Application, the applicant alleges discrimination with respect to employment based on disability and age. The hearing in this matter is scheduled for October 6, 2010. Both parties are represented by counsel.

2This Interim Decision addresses disclosure obligations relating to the upcoming hearing, and a Request for an Order during Proceedings (“Request”) from the respondent which seeks an order that the applicant provide certain documents.

Disclosure Prior to the Hearing

3The Tribunal received a package of documents from the respondent, copied to the applicant, on June 18, 2010. In addition, on August 23, 2010, the Tribunal received from the respondent a list of witnesses, with a brief summary of the expected evidence of those witnesses, and a list of the documents provided to the Tribunal on June 18, 2010, with a letter confirming that the respondent will be relying on those documents at the hearing.

4To date, the Tribunal has not received anything from the applicant that would indicate whether he intends to call witnesses or rely on any documents in giving evidence. If he intends to call any witnesses or submit any documents as evidence, he should note that his list of witnesses, statements of the witnesses’ expected evidence, materials or documents should have been delivered to the respondent and filed with the Tribunal by August 23, 2010.

5The applicant is directed to the Tribunal's Rules of Procedure, which state as follows:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

17.1 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.

17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.

17.3 A copy of an expert witness’ written report, or full summary of proposed evidence, and curriculum vitae must accompany the witness list.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

6The filing of such materials allows the parties to better understand the nature of the issues and assists the Tribunal in determining how best to proceed with the Application with a view to facilitating its fair, just and expeditious resolution. If the applicant wishes to call witnesses to testify at the hearing, or submit any documents in evidence, he is directed immediately to deliver to the respondent and file with the Tribunal (along with a Statement of Delivery) copies of the documents, a witness list and witness statements in accordance with his obligations under Rules 16 and 17 above.

Request for disclosure of documents

7On July 19, 2010, the respondent filed a Request for an Order during Proceedings (“Request”), copied to the applicant. In the Request, the respondent seeks an order that the applicant provide certain documents as required under rule 16 of the Tribunal's Rules of Procedure. The applicant has not filed a response to the Request, and the time for doing so has passed.

8The standard for disclosure in a human rights proceeding is “arguable relevance”. It has been stated that this is not a particularly high bar, although there must be some relevance and the party seeking production must demonstrate a “nexus” or connection 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.

9In its Request, the respondent asks for disclosure of the following:

a) a list of all positions that [the applicant] has applied for since the conclusion of his employment and the date upon which he applied

b) copies of all cover letters and applications submitted to prospective employers

c) a list of the resources consulted by [the applicant] in his search for re-employment

d) a summary of any and all income taxable or otherwise that [the applicant] has earned since the conclusion of his employment in January 2008, together with related T-4 income statements

e) copies of [the applicant's] income tax returns for 2008 and 2009 confirming the income that he received in those years

f) in the event that [the applicant] asserts that he was medically incapable of searching for an appointment, copies of medical reports, opinions and/or records supporting this position

g) any other documents that are arguably relevant to any matter at issue in this application.

10The Application asserts a claim for compensation that includes a claim for lost wages. The applicant is under a duty to use reasonable efforts to mitigate his damages, so each of documents described in the list above, if it exists, is arguably relevant to an issue raised in the Application and should have been disclosed by now. The applicant is ordered to immediately disclose to the respondent and file with the Tribunal any existing documents answering to the descriptions noted in the items above. Some of the items refer to “lists” or a “summary” rather than documents. Under Rule 1.7(p), the Tribunal is empowered to require a party to produce information in order to provide for the fair, just and expeditious resolution of a matter before it. If the “lists” or “summary” above are not already contained in documents, the applicant is directed to compile the information and provide it to the respondent and the Tribunal within two weeks of this Interim Decision.