Dixon v. Isidoro R. Grossi Professional Corporation, 2010 HRTO 242

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rochelle Dixon

Applicant

-and-

Isidoro R. Grossi Professional Corporation and Isidoro Grossi

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: February 2, 2010

Citation: 2010 HRTO 242

Indexed as: Dixon v. Isidoro R. Grossi Professional Corporation

BACKGROUND

1This Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed on August 5, 2009, alleges that the respondents discriminated against the applicant on the basis of prohibited grounds in respect of employment.

2The Application was sent to the respondents by the Tribunal on November 19, 2009, together with a Notice of Application, advising the respondents that their Responses were due 35 days after that date.

REQUEST FOR EXTENSION OF TIME AND PRODUCTION OF DOCUMENTS

3The respondents have not yet filed Responses to the Application. Rather, the respondents filed a Request for Order during Proceeding (the “Request”) on December 23, 2009, seeking an extension of time for the filing of a Response and also an order directing the applicant to produce certain documents, as well as a voice recording, before requiring them to file Responses to the Application. The Request was delivered to the applicant by the respondents with instructions to respond within 14 days of delivery of the Request. The applicant has not filed a response to the Request.

4On November 24, 2009, and days after he received the Application from the Tribunal, the personal respondent suffered a personal tragedy, the passing of a member of his immediate family. Consequently, the respondents did not retain legal counsel until December 21, 2009, who, by that time, was unable to prepare and file a Response prior to the deadline of December 24, 2009. The respondents seek four weeks from receipt of the documents they seek during which to prepare and file their Response to the Application.

5The Tribunal’s Application form, in question 16, directs the applicant to list documents which she has which are important to her Application. In that section, the applicant has listed a number of documents, one of which is a voice recording. The Application also directs the applicant, in question 18, to list important documents which she believes are in the possession of another person or organization. There, the applicant lists a claim that was filed against the personal respondent with the “Ontario Labour Board”. It is these documents, listed in response to questions 16 and 18 on the Application form, which the respondents seek to have produced prior to being required to file a Response.

APPLICABLE RULES OF PROCEDURE

6According to the Tribunal’s Rules of Procedure, when the Tribunal receives an Application, it reviews it to ascertain whether it is sufficiently complete to be processed by the Tribunal. (Rule 6.4). Rule 6.2 sets out what a complete Application is:

A complete Application must provide the information requested in every section of the Application form and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant’s rights under the Code.

7If the Tribunal determines that an Application is sufficiently complete to allow it to be processed, it sends it to the respondent for Response. Rule 8.1 and 8.2 speak to a respondent’s obligations in respect of an Application delivered to them by the Tribunal:

8.1 To respond to an Application under sections 34(1) or 34(5) of the Code, a Respondent must file a complete Response in Form 2 not later than (thirty-five) 35 days after a copy of the Application was sent to the Respondent by the Tribunal.

8.2 A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies. Where a Respondent alleges the issues in dispute in the Application are the subject of:

a) a full and final signed release between the parties, or

b) a civil court proceeding requesting a remedy based on the alleged human rights infringement, or

c) a complaint filed with the Ontario Human Rights Commission,

the Respondent need not respond to the allegations in the Application, but must attach a copy of the applicable release, or statement of claim or court decision, or complaint filed with the Ontario Human Rights Commission or its decision to the Response. Notwithstanding anything else in Rule 8.2, the Tribunal may direct a Respondent to file a complete Response where the Tribunal considers it appropriate.

8Failure to file a Response as required by the Rules may lead to orders being made against respondents without further notice or their participation. Rule 5.5 of the Tribunal’s Rules of Procedure reads as follows:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

ANALYSIS AND DECISION

9The applicant in this matter has set out in response to Question 8, “Facts that Support Your Application”, the factual allegations upon which her Application is based with sufficient detail to identify to the respondents the manner in which she alleges they infringed her rights under the Code. The documents which the applicant identifies in other sections of the Application are not factual allegations upon which the Application is based. Rather, they are documents which may or may not become documentary evidence of the alleged facts at the hearing of this Application. I find that the respondents do not require the documents to respond to the factual allegations in the Application. In their request, the respondents assert that they require the documents in order to make a full Response to the Application, but they do not explain why that is so in specific terms. The respondents have not identified any circumstances which prevent them from responding to the substance of the allegations in the absence of the documentary production they seek.

10Rules 16 and 17 in the Tribunal’s Rules of Procedure govern the pre-hearing production of arguably relevant documents, documents upon which the parties intend to rely and witness will-say statements. Generally, parties are not required to exchange arguably relevant documents until 21 days after the Notice of Hearing is issued by the Tribunal. I see no reason in this case to depart from the Tribunal’s Rules of Procedure by ordering the applicant to produce documents to the respondents before they have even filed a Response. Accordingly, the respondent’s request for production of documents prior to the filing of a response is denied.

11Given the personal respondent’s circumstances at the time the Response was due, however, the Tribunal is persuaded that it is fair and just to grant the respondents an extension of time for the filing of a Response. The respondents are directed to file their complete Responses to the Application within 14 days of the date of this Interim Decision. This is less than the time requested by the respondents. However, counsel for the respondents has had the Application for more than 35 days since she was retained. Accordingly, the time allowed should more than suffice.

12The Tribunal’s Rules of Procedure are available on the Tribunal’s website, www.hrto.ca.

13I am not seized.