Blayne Neilon v. Bourgeois Motors Limited, 2010 HRTO 528

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Blayne Neilon Applicant

-and-

Bourgeois Motors Limited Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: March 11, 2010 Citation: 2010 HRTO 528 Indexed as: Neilon v. Bourgeois Motors

INTRODUCTION

1The purpose of this Interim Decision is to address the applicant’s Request to amend the Application; the respondent’s Request for production of documents and an adjournment of the hearing; the failure of both parties to fully comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses; and to provide direction to the applicant with respect to his attendance at the hearing.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 11, 2009, which alleges that the respondent discriminated against him with respect to employment because of his disability. Specifically, he alleges that the respondent refused to accommodate his needs related to his disability after he returned from a leave, denied him a benefit (one paid day off per month) that he had enjoyed prior to his leave, and forced him to resign from his employment.

3The respondent filed a Response on July 21, 2009, which denies the allegations of discrimination. The respondent denies that the applicant had a disability, or that he had any accommodation needs. The respondent states that it did not pay the applicant for the day that he took off because he failed to work the required overtime to take the day off. The respondent further states that the applicant resigned from his employment in order to engage in a business venture (a pool hall) that did not come to fruition.

4The applicant filed a Reply on July 28, 2009.

5On October 10, 2009, the applicant filed a Request for Order During Proceedings to amend his Application to include the ground of reprisal. The respondent filed a Response on October 16, which requested further particulars and an extension of time to respond to the particulars. The applicant filed an amended Request on October 20, which alleged that the respondent reprised against him because of its belief that he was participating in a pool league while he was absent from work because of his disability.

6On October 29, 2009, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for March 16, 17, 18 and 31, 2010. The Notice also informed them that requests for adjournments would be dealt with in accordance with the Tribunal’s “Information Bulletin: Scheduling of Hearings and Mediations, Rescheduling Requests, and Request for Adjournments.” The Information Bulletin provides that requests to reschedule a hearing must be made within five (5) days of receiving the Notice, and thereafter, requests for adjournments will only be granted in extraordinary circumstances, such as the illness of a party, witness or representative.

7The Confirmation of Hearing Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses. Rule 16 requires each party to deliver to every other party a list and copy of all arguably relevant documents in its possession by no later than 21 days after the date of the Notice, and to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing. Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness no later than 45 days prior to the first scheduled day of hearing.

8In accordance with the Hearing Notice and Rules 16 and 17, the parties were required to disclose to each other and file with the Tribunal all documents that they intend to rely on, a witness list and witness statements by no later than February 1, 2010.

9To date, the applicant has failed to comply with Rules 16 and 17, while the respondent has complied with Rule 16, but not Rule 17.

10On December 11, 2009, the respondent filed a Request for Order During Proceedings, which requested that the Tribunal order the applicant to produce a list and copy of arguably relevant documents in his possession, including full disclosure of his medical records, all communications between him and the Workplace Safety and Insurance Board (“WSIB”) relating to his employment with the respondent, and all documentation with respect to his aborted purchase of the Dakota Sport Club. The respondent also requested an adjournment of the hearing. The applicant did not file a Response to the respondent’s Request.

REQUEST TO AMEND APPLICATION

11The applicant’s Request to amend the Application to include the ground of reprisal is denied. Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

12The applicant’s Request does not allege any facts which would come within the scope of section 8. The applicant does not allege that the respondent subjected him to reprisal because he attempted to claim or enforce his rights under the Code, he instituted or participated in proceedings under the Code, or he refused to infringe the right of another person under the Code.

PRODUCTION REQUEST

13The respondent’s Request for production of documents from the applicant is granted. In its Request, the respondent submitted that the documents are arguably relevant because the respondent’s position is that the applicant did not have a disability, was not discriminated against, and left his position with the respondent to engage in a business venture that did not come to fruition.

14I agree with the respondent that the applicant’s medical records related to his disability and the communications between him and WSIB are arguably relevant, particularly given that the applicant is alleging that the respondent failed to accommodate his needs related to disability. I also agree with the respondent that all documents with respect to the applicant’s aborted purchase of the Dakota Sport Club are arguably relevant, given that he resigned from his employment. The Tribunal therefore orders the applicant to immediately deliver to the respondent and file with the Tribunal all the requested documents.

ADJOURMENT REQUEST

15The respondent’s Request for an adjournment of the hearing is denied without prejudice to its right to raise the Request again at the hearing. In its Request, the respondent submitted that it will most likely need to have the WSIB and medical documents reviewed by a medical practitioner, who may then need to be called as an expert. In my view, the possibility that the respondent will need to consult with a medical practitioner and call him or her as an expert witness does not justify adjourning the hearing at this point.

DISCLOSURE OF DOCUMENTS AND WITNESSES

16As mentioned above, the respondent filed the documents that it intends to rely on at the hearing, but has not filed a witness list and summary witness statements, while the applicant has not filed anything. The Tribunal therefore orders that the parties fully and immediately comply with Rules 16 and 17 of the Tribunal’s Rules.

APPLICANT’S ATTENDANCE AT HEARING

17I am concerned that the applicant’s failure to file a Response to the respondent’s Request for production of documents and an adjournment of the hearing, and his failure to comply with Rules 16 and 17 of the Tribunal’s Rules with respect to disclosure of documents and witnesses, may indicate that he has abandoned his Application.

18The Tribunal has a duty to be accessible and dispose of applications fairly, justly and expeditiously: see section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. This duty is not only in relation to applicants, but also in relation to respondents and the public. In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated at paras. 4-7:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

19The Tribunal therefore directs the applicant to file an e-mail or letter with the Tribunal, copied to the respondent, by no later than 12:00 PM on March 15, 2010, which confirms whether or not he is still participating in the proceeding and intends to attend the hearing. If the applicant fails to follow this direction, his Application may be dismissed.

ORDER

20The Tribunal makes the following orders:

(a) The applicant’s Request to amend the Application is denied.

(b) The respondent’s Request for production of documents is granted. The applicant shall immediately deliver to the respondent and file with the Tribunal all the documents requested by the respondent.

(c) The respondent’s Request for an adjournment of the hearing is denied.

(d) The parties shall fully and immediately comply with Rules 16 and 17 of the Tribunal’s Rules with respect to disclosure of documents and witnesses.

(e) The applicant is directed to file an e-mail or letter with the Tribunal, copied to the respondent, by no later than 12:00 PM on March 15, 2010, which confirms whether or not he is still participating in the proceeding and intends to attend the hearing.