HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Desiree Martin
Applicant
-and-
The Reverent Norman Johnston Youth Residence Inc., Chris Grant, Ron Toop, Doris Marshall and Jeanne Hill
Respondents
Interim decisiON
Adjudicator: David Muir
Indexed As: Martin v. The Reverent Norman Johnston Youth Residence
1This is an Application filed June 11, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This decision deals with a Request for Order During Proceedings filed by the applicant on February 17, 2010 (the "February 17 Request"), requesting the production of a number of documents and directions respecting the conduct of the hearing. This interim decision also deals with an earlier request for the production of documents by the applicant's letter dated January 3, 2010 (the "January 3 Request").
2The human rights complaint filed with the Ontario Human Rights Commission (the complaint) is dated January 24, 2008. In the complaint the applicant alleges discrimination on the basis of disability as well as reprisal and sexual solicitation. The salient incidents alleged in the complaint occurred between January 9, 2006 and late in the year 2007.
Production Issues
3The respondents state that all of the documents listed in paragraphs 1, 2, 4, 5, 6, 9, 10, 12, 14 and 17 of Appendix "1" of the February 17 Request have either been produced already or do not exist. No Order will be made with respect to any of these documents. Disputes remain with respect to the requests in paragraphs 7, 8, 11, 13, 15 and 16.
4The requests in paragraphs 7, 11, 13, 15 and 16 include budget documents, financial statements, budget submissions, etc. The respondents state that these documents are not arguably relevant to the issues in dispute. The applicant made no submissions directly dealing with the relevance of these kinds of documents. Considering the allegations as framed in the complaint I am not satisfied that these documents are arguably relevant and need not be produced.
5The request in paragraph 8 requests the production of copies of emails, notes and letters exchanged between the corporate respondent and a Ms. Storey relating to the applicant or exclusion of the applicant from June 2007 to October 2007. Ms. Storey is not mentioned in the complaint and she is not identified in the applicant's submission on the Request. I am not satisfied that these documents are arguably relevant and accordingly they need not be produced.
6In her January 3 Request, the applicant requests the production of documents listed in 16 paragraphs. The respondents state that they will produce all arguably documents listed in paragraphs 2, 3, 5, 6, 8, 9, 10, 13, 14 and 15 of that Request. With respect to the requests in paragraph 4, 7, 11, 12 and 16, the respondents state they will produce all arguably documents contemplated by the Request but take the position that they are not relevant. I interpret that to mean that the respondents will produce the documents in question but reserve the right to assert that the documents are not relevant and should not be admitted at the hearing.
7The only request in dispute appears to be the applicant's request for production of all minutes of Board of Directors for the calendar year 2006. The individual respondents state that these documents are not relevant because as of that time the applicant had not yet informed the respondent of her disability nor raised an issue of her entitlement to unpaid vacation time, which the respondents state was the source of difficulty between the parties at the time these meetings were held. I am satisfied that these documents are arguably relevant and ought to be produced. I note at this stage that the documents being requested and produced are voluminous. The parties are reminded that not everything that is produced at this stage will be relevant and if not relevant to the issues as framed in the complaint underlying this Application, should not be tendered at the hearing.
8Finally in response to the applicant's request in paragraphs 8 to 11 of appendix "A", the respondents state that communications between the Board of Directors of the corporate respondent and its counsel, which was copied to Mr. Rakabowchuk who at all material times was acting as Chair of the respondent Board, are not producible because they are privileged. The respondents concede that in fact there is no resolution of the Board making Mr. Rakabowchuk the acting Chair of the Board or even a Director. The respondents nonetheless state that Mr. Rakabowchuk was acting as an agent of the corporate respondent in receiving such legal advice and accordingly his receipt of the communications in question does not amount to disclosure to a "third party". I agree. I am satisfied that any legal advice received by the Board or Mr. Rakabowchuk in his capacity as an acting chair of the Board of the corporate respondent is protected by solicitor-client privilege.
Case Assessment Directions
9In her Request the applicant also sought direction on a number of matters:
a. The applicant requested a Direction that her medical information not be disseminated beyond the hearing process. The respondents agree. The Tribunal's Rules provide that material disclosed in the pre-hearing process is to be used solely for the purposes of the hearing. The parties are reminded however that Tribunal hearings are public as are its published decisions. Medical information that is relevant to the issues in dispute in the Application may be referred to in the course of the hearing and in the resulting decision.
b. The applicant requests that witnesses be scheduled in a way that would minimize the time that they will be required. The Tribunal directs that the parties provide detailed summaries of what each proposed witness is expected to say. If medical evidence is to be tendered, a report of the medical practitioner setting out their opinion and the reasons for it will satisfy this Direction.
This will allow for a more focussed examination of each witness and will assist in ensuring a fair, just and expeditious hearing. Will-says for each proposed witness will be delivered and filed at the latest May 20, 2010.
The applicant should be prepared to lead her case on the first day of hearing. It seems unlikely that the case will be completed in one day; however, in the absence of will-says from the parties, it will be difficult to estimate how many days might be required.
The parties may request further Direction from the Tribunal regarding the number of witnesses required for the first day of hearing upon receipt of the productions and after the will-says have been delivered and filed.
c. The applicant requests that three of her potential witnesses, Dr. Brown, Dr. Vilis and Cynthia Ireland, be allowed to testify by telephone. The respondents state they reserve their right to cross-examine all witnesses but can not respond to this request until they have reviewed the medical documents of the two medical witnesses. Pending disclosure of the medical information to be obtained from these witnesses it is not possible at this stage to provide Direction. The applicant may renew the Request at the appropriate time.
d. The applicant requests that she be allowed to make an audio recording of the proceeding. The respondent takes no position on this request.
The Tribunal does not normally record proceedings. A recording made by a party for their personal use during the hearing does not form part of the Tribunal's record of proceedings, including the record filed in respect of any appeal or application made under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Subject to that condition and any others thought appropriate by the adjudicator presiding at the hearing, the applicant may make an audio recording of the hearing at her expense and using her equipment.
Order
- The respondent will produce all Minutes of Meetings of the Board of Directors for the calendar year 2006.
10I am not seized.
Dated at Toronto, this 23rd day of March, 2010.
"Signed by"
David Muir
Vice-chair