White v. Queen’s University, 2010 HRTO 298

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David White

Applicant

-and-

Queen’s University at Kingston

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: February 9, 2010

Citation: 2010 HRTO 298

Indexed as: White v. Queen’s University

1The applicant filed an Application dated June 8, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of disability. The respondent filed a Response on July 14, 2009 denying the allegations. The hearing is scheduled for February 17, 2010.

2This Interim Decision deals with a Request for Order During Proceedings (RFOP) filed by the applicant on November 3, 2009, and opposed by the respondent in submissions filed on November 9, 2009.

Request for Order

3The applicant requests an Order compelling the respondent to disclose the personal notes taken by John Wietjes, Aaron Ball and Gerry Plunkett during the applicant’s job interview. The allegations which form the substance of this Application relate to a job hiring process that the applicant believes were discriminatory.

4The respondent opposes the request on the basis that the notes are no longer in its possession, having been either destroyed or lost when the Director moved office in January 2009.

5Disclosure obligations are outlined in Rules 16 and 17, which set deadlines for producing documents, witness lists and summaries of anticipated witness evidence. According to the Rules, no party may rely on or present any document or witness not disclosed in accordance with Rules 16 and 17 prior to the hearing, except with the permission of the Tribunal.

6The respondent met its production obligation and filed a Book of Relevant Documents on December 29, 2009. The applicant has not, to date, disclosed any arguably relevant documents in his possession. Neither party has filed witness lists and statements.

DECISION

7In considering the applicant’s request, the sufficiency of the respondent’s compliance with its Rule 16 disclosure obligation is directly implicated. While the applicant’s failure to comply himself with Rule 16 is not a reason to hold the respondent to a lower standard, it is a point worth mentioning.

8Regarding the documents sought, there is no question that any notes taken during the applicant’s job interview are “arguably relevant” to the question of whether the job hiring process at issue was discriminatory. Subject to any exception (such as privilege), which is not relied on by the respondent, it is clear that the documents would be compellable.

9However, in light of the respondent’s response, it appears that the documents no longer exist and are therefore not in the possession of the respondent. I am not able to order a party to disclose documents which either do not exist or are not in that party’s possession. The request is therefore denied.

10In the event that the respondent comes into possession of the notes or becomes aware of their existence, the respondent is reminded of its ongoing disclosure obligations under the Rules and of the possible consequences of non-compliance.

11The applicant is ordered to comply with his disclosure obligations pursuant to Rules 16 and 17, and is cautioned that failure to comply with the Rules may result in his being prevented from relying on any document or calling any witness that was not disclosed prior to the hearing.