HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kelly Briggs
Applicant
-and-
Corporation of the City of Niagara Falls and Ray Anderson
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as : Briggs v. Niagara Falls (City)
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 16, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on June 4, 2007.
2The purpose of this Interim Decision is to address two Requests for Order filed by the respondents dated April 22, 2010 and June 17, 2010 requesting particulars, dismissal of certain aspects of the Application, and requiring the applicant to comply with the Tribunal’s Rules.
3I will address each of these Requests for Order in turn.
The April 22, 2010 Request for Order
4On April 22, 2010, the respondents filed a Request for Order seeking particulars of the applicant’s allegations of discrimination and harassment because of disability, dismissal of his allegations of discrimination because of sex, or in the alternative particulars of his allegations of discrimination and harassment because of sex.
5I will deal with this Request first as it relates to allegations of discrimination or harassment because of sex. Pursuant to s. 53 of the Code, a transition application must be based upon the subject-matter of the complaint as filed with the Commission. While the applicant did not file a complete copy of his complaint when his Application initially was filed with the Tribunal, a complete copy of the complaint was filed by applicant’s counsel in August 2009. In the self-drafted portion of the complaint, the applicant does indicate both disability and sex as grounds of discrimination and harassment. However, when the complaint was issued by the Commission, the ground of sex was removed. As a result, no allegation of discrimination or harassment because of sex is within the scope of this Application.
6With regard to the allegations of discrimination or harassment because of disability, the respondents take the position that the applicant has identified four such allegations in his complaint:
a) That the personal respondent parked too far from the entrance when he drove the applicant to the hospital (para. 3);
b) That the personal respondent gave the applicant a “dirty look” in relation to his ankle injury (para. 3);
c) That the personal respondent referenced the applicant’s ankle injury in front of his colleagues (para. 4); and
d) That another individual, Chris Davies, was tampering with the applicant’s personal turn out gear (para. 7).
7The respondents further state that the applicant alleges that he has been verbally harassed by the personal respondent, Mr. Davies and one other individual, Jaret Anderson, but does not provide further particulars of when or where the harassment occurred or what acts allegedly constitute harassment.
8The respondents take the position that the particulars that have been provided are at best generalized and scant, such that they cannot properly defend against the applicant’s allegations.
9Despite the fact that the respondents’ Request for Order was served on the applicant’s counsel, no Response to Request for Order was filed by or on behalf of the applicant.
10On the face of the complaint, I do not believe that the applicant’s allegations of discrimination and harassment because of disability are framed as narrowly as suggested by the respondents. Paragraph 3 of the complaint sets out an allegation relating to how the applicant was treated by the personal respondent on the evening of July 4, 2006 when he sustained his ankle injury. In addition to the particulars cited by the respondents as set out above, the applicant alleges that the personal respondent reluctantly took him to emergency and showed signs of annoyance with him. The respondents already have provided a full response to the allegation in this paragraph. I do not regard this allegation as being deficient in particulars.
11In paragraph 4 of the complaint, the applicant alleges that comments were made by the personal respondent when he would show up at the Fire Hall to observe training that the applicant found humiliating and unnecessary, particularly as he alleges they were made in front of the other firefighters in attendance. The specific comments alleged to have been made by the personal respondent are indicated in the complaint. Once again, the respondents already have provided a full response to the allegation in this paragraph. I do not regard this allegation as being deficient in particulars.
12In paragraph 7 of the complaint, the applicant alleges that he was falsely accused and targeted with discrimination, harassment and wrongful dismissal, and that this was a cover up to terminate him from his firefighting duties due to the fact that he had to go on disability for his injured left foot. This allegation follows paragraph 6 of the complaint, in which the applicant expressly references incidents on February 15, 2007 and March 13, 2007 for which he alleges he was falsely disciplined (the complaint actually refers to 2006, but this appears to be a typographical error). Any fair reading of the complaint would indicate that the applicant is alleging that he was improperly disciplined for the February 15, 2007 and March 13, 2007 incidents because of his disability, and that he was subsequently terminated on March 19, 2007 because of his disability. Once again, the respondents already have provided a full response to these allegations. I do not regard these allegations as being deficient in particulars.
13Paragraph 7 of the complaint also includes an allegation that the applicant was not called for an interview for full-time employment as a firefighter because of his injury. Once again, the respondents already have provided a full response to this allegation. I do not regard this allegation as being deficient in particulars.
14Paragraph 7 also alleges that the applicant has been verbally harassed by Mr. Davies, Mr. Jaret Anderson, and the personal respondent. I agree with the respondents that this allegation is completely lacking in particularity as to what is alleged to have been said, when, where, and whether or how the applicant alleges that this amounts to harassment because of disability.
15By letter dated May 10, 2010, the applicant was notified of the hearing date and informed that he had until June 9, 2010 to serve and file a statement of any additional facts that he intended to rely upon. By the time of this letter, applicant’s counsel already had been served with the respondents’ request for particulars. In addition, the May 10, 2010 letter also afforded the applicant with an opportunity to file any submissions regarding the respondents’ request for particulars by July 8, 2010.
16To date, no additional statement of facts has been filed by the applicant and no response has been received in relation to the respondents’ request for particulars. In these circumstances, given that the applicant has been afforded ample opportunity to file particulars of his allegations of verbal harassment by these three individuals and has failed to do so, I find that the allegation of verbal harassment by these named individuals as set out in paragraph 7 is so lacking in particularity that it should be dismissed, and I do so.
17Paragraph 7 of the complaint next alleges that the applicant has personally witnessed Mr. Davies tampering with his personal turn out gear on at least three separate occasions. The complaint does not provide particulars as to when this is alleged to have occurred, nor is there an allegation that this conduct took place because of the applicant’s disability. Further, despite being provided with the opportunities as specified above, the applicant has failed to provide any further particulars regarding this allegation. Accordingly, I find that this allegation too is lacking in particularity and more specifically fails to allege any link to disability such that it should be dismissed, and I do so.
The June 17, 2010 Request for Order
18The respondents Request an order precluding the applicant from relying upon any additional facts, or in the alternative requiring the applicant to file a statement of additional facts.
19Under the Transitional Rules, the purpose of affording the parties with an opportunity to file a statement of additional facts is for the parties to set out any further facts material to the issues raised in the proceeding not already set out in the complaint or response filed with the Commission. As a result, if there are no such additional facts that an applicant intends to rely upon, then it is not necessary to file any statement of additional facts.
20Rule 3.4 of the Transitional Rules already sets out the consequences of not raising a fact or issue in the application, response or supplemental statement of facts, which is that the Tribunal may refuse to allow the party to present evidence or make representations about the fact or issue unless satisfied there would be no substantial prejudice and no undue delay to the proceedings. In light of this Rule, there is no necessity or basis for making the order requested by the respondents.
21The respondents also request an order requiring the applicant to deliver and file a statement of the remedies sought. The remedies sought by the applicant are already specified in the complaint and on the face of the Application. There is no necessity to make the order requested.
22Finally, the respondents seek an order precluding the applicant from relying upon any documents not already produced, including medical information, or in the alternative an order requiring the applicant to immediately disclose this information. In the Tribunal’s May 10, 2010 letter to the parties, the applicant was directed to provide disclosure to the respondents by delivering to them a copy of all arguably relevant documents in his possession, including all relevant medical documentation, by June 9, 2010. The respondents state that this has not been done, and the Tribunal has received no indication to the contrary from the applicant.
23The consequences of not disclosing documents is set out in Rule 18.5, which states that the Tribunal may refuse to consider or allow a party to rely upon any document not disclosed in accordance with the Rules at the hearing. While this Rule may be effective in relation to documents which are in a party’s favour, it is not really helpful in relation to documents in a party’s possession that may be adverse to their position. As a result, the mere consequences of Rule 18.5 are not, in my view, sufficient to relieve a party from its fundamental obligation to disclose all arguably relevant documents. Accordingly, I require the applicant to comply with his obligation to disclose all arguably relevant documents, including all relevant medical documentation, within 14 calendar days of the date of this Interim Decision. Should the applicant fail to do so, I am prepared to consider whether this Application should be dismissed in its entirety as an abuse of process.
24Finally, the respondents have requested an extension to comply with their obligation to file a statement of additional facts and to make disclosure. Pursuant to the Tribunal’s May 10, 2010 letter, the respondents were to have complied with their pre-hearing obligations by no later than June 24, 2010. While the respondents did file their Request for Order one week before the June 24, 2010 compliance date and did request an extension of their compliance date as part of the order requested, this does not absolve the respondents from compliance with their pre-hearing obligations to the best of their ability by the stipulated deadline in the absence of any extension granted by the Tribunal. While I appreciate that a respondent cannot reply to an applicant’s statement of additional facts and remedy if the applicant doesn’t file one, a respondent nonetheless can file a statement of any additional facts that it intends to rely upon at the hearing. Further, an applicant’s failure to make timely disclosure is no excuse for a respondent’s failure to fulfil its obligation to make disclosure.
25In the circumstances of this case, I am prepared to allow the respondents a further period of time to comply with their pre-hearing obligations. The respondents shall serve and file any statement of additional facts and shall make disclosure to the applicant of all arguably relevant documents in their possession within 14 calendar days of the date of this Interim Decision.
Dated at Toronto, this 27th day of September, 2010.
”signed by”_________
Mark Hart
Vice-chair