Winter v. Arnprior (Town), 2010 HRTO 552

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Igor Alexander Winter and James MacIntyre

Applicants

-and-

Town of Arnprior and Terry Gibeau

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: March 12, 2010

Citation: 2010 HRTO 552

Indexed as: Winter v. Arnprior (Town)

1In this Application, made under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, the applicants allege that the respondents violated their right to equal treatment in respect of services because of various actions taken by the respondent municipality and its mayor. The details of the allegations are set out in an Interim Decision, reported at 2009 HRTO 713.

2The Tribunal has held seven days of hearing, including one on a preliminary matter. The proceeding, in which all parties are represented by counsel, has been highly contentious. The Tribunal has issued 13 Case Assessment Directions relating to various Requests made by the parties and correspondence from them. One of the first of these, dated May 7, 2009, provided that on consent, production pursuant to Rule 16 of the Tribunal’s Rules of Procedure was to be made by May 20, 2009, and any Requests for Order relating to production had to be filed by May 27, 2009. It scheduled a conference call on June 5, 2009 to hear argument on any outstanding requests. Both parties filed Requests alleging that the opposing party had not disclosed certain arguably relevant documents. The production issues were eventually settled by agreement during various calls. In particular, one of those agreements was that the hearing would be bifurcated and documents relevant to the applicants’ requested remedy would not be disclosed until after a decision on liability.

3After six days of hearing on the merits, the applicants closed their case on September 18, 2009, thereby confirming that they did not intend to introduce any further evidence. The respondents indicated shortly thereafter their intention to bring a Request that the Application be dismissed without requiring them to call evidence. A telephone conference call to hear that Request was scheduled for November 26, 2009.

4On November 25, 2009, the day prior to the conference call, the applicants filed a Request for Order seeking production of particular documents. Counsel for the applicants had not previously made this request to counsel for the respondents. Counsel for the applicants asked that the Tribunal not rule on the respondent’s request for dismissal until the documents were produced.

5On November 30, 2009, the Tribunal issued a Case Assessment Direction finding that the applicants’ case should not be dismissed in its entirety, but that the respondents were not required to call evidence on three issues. The respondents were directed to produce certain documents (correspondence between a certain individual and Mayor Gibeau) and dismissed certain other aspects of the production request. The Case Assessment Direction stated that reasons for the orders would be contained in the final Decision. Counsel for the respondent Town was also directed to confirm that he had requested copies of notes and correspondence from members of Town Council regarding the matters at issue in the Application and that they were advised of their obligation to produce all arguably relevant documents.

6On December 18, 2009, the respondent Town disclosed the correspondence between the individual in question and the mayor, some correspondence between another councillor and Dr. Winter and other members of the community, and a letter from the mayor to other members of the Arnprior Town Council. Counsel for the Town, Mr. O’Brien, advised that his predecessor as counsel to the Town, Mr. Mirsky, had reviewed this document and concluded that it was not relevant nor should it be disclosed. While Mr. O’Brien accepted this rationale, he believes it is also arguable that it is relevant to matters arguably relevant and decided that it should be produced.

7The applicants now ask that the Tribunal issue a declaration that the respondents have failed to comply with their production obligations under the Rules, make an order for production of arguably relevant documents, and permit them to reopen their case to call new evidence on the issues on which the Tribunal directed that the respondents need not call evidence. While they state that there is no obligation for them to request particular documents from the respondents, they have provided a 33 item list of further production that they wish the Tribunal to order. They state that if the Tribunal does not make the orders requested it will be condoning the respondents’ violation of the Rules and “undermining the Tribunal’s authority and public confidence in the hearing process”. They state that “[i]f ignoring the rules goes unpunished then the rules are meaningless and the work of the Tribunal is significantly undermined”.

8Since receipt of the applicants’ Request for Order, The Tribunal has directed counsel for the respondents to confirm that they and their clients have made best efforts to disclose all documents arguably relevant to the matters in the original Applications. Both respondent counsel have complied with this direction.

DECISION

9I agree with the applicants that the documents disclosed on December 18, 2009, are arguably relevant documents that should have been disclosed by the deadline of May 20, 2009. However, I do not agree with the applicants that the orders requested should be made.

10The applicants are correct that there is an obligation to disclose all arguably relevant documents. The parties are required to make best efforts to disclose all such documents. However, as in civil proceedings, parties sometimes have different views about arguable relevance and new documents are sometimes found.

11Following disclosure, the opposing party often requests additional categories of documents. In civil proceedings, such requests are made at examinations for discovery. In administrative proceedings, such requests are made through a letter, written to the other party or its representative, requesting disclosure of documents in a particular category. If the other party refuses to disclose the requested categories of documents, in the Tribunal process the other party can bring a production request through a Request for Order During Proceedings.

12In this case, each party in fact took the position that the other party had not disclosed arguably relevant documents and Requests for Order were made by the relevant deadline. I note that the applicants had not disclosed various financial and medical documents that were almost certainly arguably relevant by the date in the Tribunal’s order, and the issue was resolved by the parties by deciding that the hearing would be bifurcated.

13The solution to production disputes or subsequently discovered documents is not to “punish” a party that did not make the disclosure. It is for the opposing party to request the documents, and if production is refused and agreement cannot be reached, to have the Tribunal resolve the issue. The goal is to avoid substantive prejudice to the other party.

14In this case, the applicants made a request on November 25, through a Request for Order. This caused various documents to be disclosed on December 18 that were arguably relevant. All of these documents, in my view, are arguably relevant to the issues that the respondents must call evidence on, and are not of assistance on the issues that I have found I need not hear evidence on. I fail to see how the applicants have been substantially prejudiced. They have not indicated that they would have called these documents as evidence in their case and they may cross-examine respondent witnesses about them.

15The applicants closed their case in September, and thereby made a decision they were not calling more evidence or seeking more disclosure. The late disclosure of certain documents does not entitle the applicants to reopen their case or seek more disclosure on issues that have nothing to do with these documents, and on which the Tribunal has ruled the respondents need not call evidence. In reviewing the applicants’ list, in my view, many or all of the requested items would not have been ordered produced in any event. Documents in these categories could have been requested long before January. The applicants have provided no explanation why the long list of items they now request was not sought by the deadline the parties agreed to and the Tribunal ordered, May 27, 2009, nor in the eight months following that date.

16There is no need to make any further declaration or an order that all arguably relevant documents be disclosed. There is an ongoing obligation in the Rules to disclose all arguably relevant documents and I accept that the respondents have made best efforts to comply with that obligation.

17If there are any categories of documents that the applicants believe are arguably relevant to issues other than the alleged change in policing services, the rerouting of the Millenium Trail, and the termination of water service to the fire hydrant, they may make a request to respondent counsel for those documents. If there remains a dispute, the Tribunal will consider a Request for Order that disclosure be ordered. The Tribunal will not, however, consider any such request unless it includes copies of an exchange of correspondence between counsel that confirms that disclosure has been requested by the applicants and refused by one or the other of the respondents.

18The Request for Order is dismissed.