Gibbs v. Kawartha Pine Ridge District School Board, 2010 HRTO 521

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Gibbs

Applicant

-and-

Kawartha Pine Ridge District School Board, Don Murphy and Bruce Davidson

Respondents

INTERIM DECISION

Adjudicator: Ailsa Jane Wiggins

Date: March 10, 2010

Citation: 2010 HRTO 521

Indexed as: Gibbs v. Kawartha Pine Ridge District School Board

1This is an Application filed on January 16, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that he was discriminated against in his employment on the basis of disability. The hearing commenced on January 12, 2010 and is scheduled to resume on March 25 and 26, 2010.

2The purpose of this Interim Decision is to address case management issues which arose at and after the hearing on January 12, 2010 and a Request for Order During Proceedings filed by the respondents on February 16, 2010.

3On December 22, 2009, about three weeks before the hearing, the applicant requested an adjournment to obtain legal counsel. The respondents opposed the request, noting that the hearing had been scheduled since November 3, 2009, and that the applicant had ample opportunity to retain a lawyer. In an Interim Decision, dated December 24, 2009, the Tribunal denied the adjournment.

4The respondents met their disclosure requirements but the applicant did not. On December 14, 2009, the respondents filed a Request for Order During Proceedings, requesting production of documents.

5In early January 2010, shortly before the hearing and beyond the timeline for disclosure, the applicant filed further materials including witness statements. The materials contained additional information not contained in the Application and referred to arguably relevant documents that had not been disclosed by the applicant.

6The December 14, 2009 Request for Order During Proceedings was addressed at the hearing on January 12, 2010. The respondents' counsel asked that the documents referred to in the applicant’s materials be disclosed and that the respondents be given an opportunity to revise their witness statements to address new information raised in the applicant's witness statements and the documents.

7The applicant’s mother, Ms. Irene Gibbs, acted as his representative. I explained the disclosure requirements to Ms. Gibbs and the parties agreed to a disclosure schedule. The schedule was included in a letter from the Tribunal, dated January 18, 2010.

8Some of the arguably relevant documents not disclosed by the applicant were documents relating to his long term disability claim. The applicant was unwilling to disclose those documents without an order of the Tribunal as he believed he was bound by a confidentiality agreement. In an Interim Decision, dated January 14, 2010, the applicant was ordered to provide, within 14 days of the date of the Interim Decision, all documents relating to his application for long term disability benefits and the subsequent litigation, including any and all supporting documents which were part of the application, medical or otherwise; any reply correspondence from Sun Life; the statement of claim, the statement of defence and any other pleadings; copies of the documents disclosed or received during the course of the litigation; any transcripts from the examination for discovery and any settlement documents.

9Another preliminary issue that was dealt with at the hearing was the scope of the Application. The additional materials filed by the applicant in early January 2010 contained facts not mentioned in his original complaint. In order to conduct the hearing in an expeditious manner and to clarify the scope of the Application, I asked the applicant to provide a detailed statement setting out all the facts of his case in chronological order. I also asked both parties to provide detailed witness statements so that the witnesses could adopt their statements to save time at the hearing. The requirement for detailed witness statements was also confirmed in the January 18, 2010 letter from the Tribunal referred to in paragraph 7 above.

10The applicant failed to comply fully with the order in the Interim Decision and the requirements set out in the January 18, 2010 letter from the Tribunal.

11A letter from Ms. Gibbs dated January 28, 2010, stated that they were "in the midst of retaining counsel" and would not be providing any further information without counsel's advice. However, an e-mail from Ms. Gibbs dated February 3, 2010 stated that she was sending “some information in today’s mail”. This information, which was received on February 8, 2010, consisted of the applicant’s long term disability claim form, but no other information concerning the applicant’s application for long term disability benefits or the subsequent litigation as ordered in the Interim Decision, an April 25, 2002 letter from Dr. Conley and some additional material.

12Ms. Gibbs’ e-mail of February 3, 2010 and Response suggest that she has no intention of producing the detailed witness statements requested at the hearing and confirmed by the January 18, 2010 letter from the Tribunal. While the applicant did provide the brief witness statements required by the Rules shortly before the hearing and beyond the timeline for their production, detailed witness statements were requested to clarify the scope of the Application and to expedite the hearing. This requirement was confirmed in the January 18, 2010 letter from the Tribunal.

13On February 16, 2010, the respondents filed a second Request for Order During Proceedings asking that the Application be dismissed due to the applicant’s repeated and ongoing failure to comply with the Rules, the Interim Decision and the January 18, 2010 letter from the Tribunal.

14On February 24, 2010, the applicant filed a Response to a Request for Order, requesting that the hearing continue. Ms. Gibbs maintains that she has been trying to co-operate. I sympathize with her difficulties, but the disclosure requirements were explained to her at the hearing and set out in writing in the Interim Decision and the January 18, 2010 letter from the Tribunal. Her continuing failure to comply with them makes it difficult for the respondents to respond fully to the Application.

15At the hearing, Ms. Gibbs did not object to the disclosure of the documents requested by the respondents, except for the documents relating to the applicant’s long term disability claim which were the subject of a confidentiality agreement. As those documents are arguably relevant, I issued an order for their disclosure so that the applicant could provide the documents despite the confidentiality agreement. Ms. Gibbs appears to believe that she was not required to submit the documents relating to the long term disability claim because they were not referred to in the January 18, 2010 letter from the Tribunal which set out the other disclosure requirements. The long term disability documents were not referred to in the letter because they were dealt with in the Interim Decision.

16One reason for the applicant’s failure to meet the timelines set by the Tribunal is the same reason that he asked for an adjournment of the hearing on December 22, 2009, because he is seeking counsel. The applicant has had more than enough time to engage counsel. The fact that the applicant is once again seeking counsel is not a satisfactory excuse for failing to provide timely disclosure and detailed witness statements in accordance with the January 18, 2010 letter from the Tribunal or for failing to comply with an order of the Tribunal.

17By filing an Application with the Tribunal the applicant commenced a legal proceeding. Failing to comply with disclosure requirements established in the Tribunal’s Rules or an order of the Tribunal can have serious consequences.

18Rule 3.3 of the Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code provides that where a party fails to deliver material to another party as required by the Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate. Rule 18.5 provides that the Tribunal may refuse to consider or allow a party to rely upon any document not disclosed in accordance with these Rules at the hearing.

19Section 43(9) of the Code provides that the Tribunal may draw an adverse inference from the failure of a party to comply, in whole or in part, with an order of the Tribunal for the party to do anything under a Rule.

20The Tribunal has the discretion to accept materials beyond the timelines set out in the Rules where it is fair, just and expeditious to do so. I am not satisfied that the respondents have been seriously prejudiced by the applicant’s late and incomplete delivery of materials. However, should the applicant fail to deliver the balance of the arguably relevant documents in his possession and the detailed witness statements by a reasonable time prior to March 25, 2010, that is within seven days of the date of this Interim Decision, the respondents may be prejudiced and the Tribunal will cancel the March 25 and 26, 2010 hearing dates and may take any other action it considers appropriate in the circumstances.

21In her Response, Ms. Gibbs explained that some of the arguably relevant documents referred to in the materials filed never existed, no longer exist or are not in the applicant’s possession and she has attempted unsuccessfully to obtain them from others. It appears that the 1989 psychological assessment either does not exist or is not available, and the July 14, 2004 report by Dr. Conley and the Sun Life Financial emotional/psychological questionnaire are not in the applicant’s possession. On January 14, 2010, Ms. Gibbs requested Dr. Conley’s July 14, 2005 report from Dr. Pilowsky but by letter dated January 18, 2010, Dr. Pilowsky advised that she no longer has a copy of that report.

22The Tribunal makes the following orders:

(a) the applicant is ordered to provide all other documents relating to the applicant’s application for long term disability benefits and the subsequent litigation, that are in his possession or within his power to obtain, including any and all supporting documents which were part of the application, medical or otherwise; any reply correspondence from Sun Life; the statement of claim, the statement of defence and any other pleading; copies of the documents disclosed or received during the course of the litigation; any transcripts from the examination for discovery and any settlement documents within seven days of the date of this Interim Decision;

(b) the applicant is ordered to provide a detailed witness statement setting out exactly what he will say and what his case is about, including all the alleged incidents on which he is relying in chronological order, within seven days of the date of this Interim Decision;

(c) the applicant is ordered to provide detailed witness statements from each of his other witnesses setting out exactly what they will say, within seven days of the date of this Interim Decision; and,

(d) if the applicant does not provide the above mentioned documents to the respondents and the Tribunal within seven days of the date of this Interim Decision, the March 25 and 26, 2010 hearing dates will be cancelled and the Tribunal may take any other action it considers appropriate in the circumstances.