Schenk v. OSAD Inc., 2010 HRTO 509

Human Rights Tribunal of Ontario

B E T W E E N:

Kristine Schenk

Applicant

-and-

OSAD Inc., David Woodwark and Gregory Nixon

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: March 8, 2010

Citation: 2010 HRTO 509

Indexed as: Schenk v. OSAD

1This is an Application filed on March 17, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), and scheduled for hearing commencing on March 10, 2010. This Interim Decision deals with the applicant's request to amend her Application and for an order compelling additional disclosure.

2In an Interim Decision dated February 25, 2010, 2010 HRTO 446, I denied an adjournment request by the applicant and a disclosure request by the corporate respondent.

3On March 2, 2010, the applicant filed a Request for Order During Proceedings (Form 10) seeking to amend the Application to add the social area "Contracts". The applicant also requests the Tribunal order that a "mirror" copy, also referred to as a "Disk Image/Copy", of every computer hard drive used by the personal respondent, Gregory Nixon, including computers at his home, work, holiday home and his BlackBerry, be kept "in trust for evidentiary purposes".

4The respondents oppose the Request to amend on the basis that it is a late request and would prejudice the respondents. They oppose the production Request, also on the basis of lateness, and also that it is too "broad, intrusive and likely represents a fishing expedition". They also express concern that granting the Request could delay the proceedings.

DECISION AND ORDER

5The Tribunal has permitted amendments to applications made under section 34, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice (see Dube v. Canadian Career College, 2008 HRTO 336). In considering whether to allow this amendment, I am guided by what would be most fair, just and expeditious in the circumstances. A technical flaw is not a reason on its own to deny an otherwise appropriate request. The respondents claim prejudice but did not provide any details about what prejudice they will suffer.

6It is necessary for the Tribunal to hear from the parties on the applicability of sections 3 and 5, as well as 7(2) and 7(3) of the Code at the outset of the hearing. Counsel should be prepared to make submissions on whether the alleged discrimination occurred in "employment", "contracts" or neither, and whether the alleged harassment falls within the scope of section 7. Copies of any case law to be relied upon may be provided to the other parties and to the Tribunal on the first day of hearing.

7Regarding the production request, this appears to be very broad and invasive, and of little relevance to the issue before me. Whether Mr. Dixon did in fact "hack" into the applicant's computer and steal her "personal and private pictures and email addresses and then set out to distribute these to ruin both her career and her professional reputation" is not likely to be determinative of the question of whether the applicant was sexually harassed. Furthermore, it is not evident that the applicant seeks to call experts to offer opinions on the contents of the hard drives. It is therefore not clear how obtaining a "mirror" copy of the personal respondent's computer hard drives will provide useful evidence at the hearing, or how putting it "in trust for analysis" will assist the Tribunal. At this late stage in the proceedings, such a broad and expansive disclosure request is rather unusual and will most likely cause unnecessary delay. The Request is denied.