MacDonald v. Toronto District School Board, 2010 HRTO 739

Human Rights Tribunal of Ontario

Between:

Bruce Macdonald Applicant

-and-

Toronto District School Board Respondent

Interim Decision

Adjudicator: Jay Sengupta Date: April 1, 2010 Citation: 2010 HRTO 739 Indexed as: MacDonald v. Toronto District School Board

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondents discriminated against him on the basis of disability and engaged in reprisals in respect of employment during the period from 2004 through 2008. Among other things, the applicant asserts that he experienced discrimination in scheduling, discipline, comments, and in being denied necessary accommodations in the workplace. This Interim Decision deals with preparation for the hearing.

Adjournment Request

2By letter dated March 15, 2010, the applicant has sought an adjournment of the April 14, 2010 preliminary hearing date. He seeks to have the matter rescheduled to some time in October or November, 2010. The applicant seeks the adjournment in order to obtain further medical evidence and to further prepare for the hearing.

3On March 24, 2010, the respondent sent a letter to the Tribunal copying the applicant and the union indicating that it opposes the request to adjourn.

4The adjournment request is denied. The hearing will commence as scheduled on April 14, 2010.

Disclosure and Filing of Documents to be used at the Hearing

5As noted above, the hearing is scheduled to begin on April 14, 2010. The Tribunal sent out a Notice of Confirmation of Hearing, dated September 14, 2009, with hearing dates. The Notice indicated that the parties were to meet the disclosure requirements set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure. Although the original hearing dates have been subsequently rescheduled, the requirements outlined in Rules 16 and 17 remain in place.

6Rules 16 and 17 require the parties to send all arguably relevant documents to each other. In addition, they are to send each other as well as the Tribunal, copies of the documents they wish to rely on at the hearing, a list of proposed witnesses and statements briefly describing the witnesses’ intended testimony. Some of these requirements must be met no later than 21 days after the Confirmation of Hearing Notice is first issued; some no later than 45 days prior to the first day of hearing. Both deadlines have now passed.

7Rule 5.6 of the Tribunal’s Rules of Procedure states that when a party fails to deliver materials to another party as required by the Tribunal’s Rules the Tribunal may refuse to consider the material or may take any other actions it considers appropriate. Rules 16 and 17, as reinforced by Rule 5.6, are meant to ensure that parties know about any documents that are relevant to their case, and also what documents and witnesses they may face at the hearing.

8If the parties have not already done so, they are directed to disclose all arguably relevant documents to each other immediately. In addition, if either party plans to introduce documents or witnesses into evidence at the hearing, they must comply with Rules 16 and 17 immediately, and forward these materials to each other and the Tribunal. Failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to introduce documents or evidence of witness that have not been disclosed.

9At this time, the Tribunal also wishes to address the applicant’s correspondence in which he suggests that additional medical information in support of his position may be available and that he is willing to disclose this information if the Tribunal reviews and redacts the material before it is disclosed to the respondent. He appears to be seeking direction from the Tribunal as to whether he should disclose the medical documents in question.

10More recently, the applicant has sent correspondence to the Tribunal suggesting that he may obtain one or more independent medical assessments.

11The Tribunal is a neutral adjudicative body. Its role is to determine Applications under the Code based on the evidence presented by the parties in a fair, just and expeditious manner. It is not the Tribunal’s role to evaluate one party’s evidence and provide advice or assistance to that party. It is for the applicant to decide what evidence he wishes to put before the Tribunal. The Tribunal will determine the issue based on the evidence presented by the parties. In this regard, the applicant is reminded of his obligations under Rule 16 and 17 (see above).

Preliminary Issues

12On the first day of hearing, scheduled for April 14, 2010, the parties should come prepared to address the following preliminary issues.

13The applicant has made a Request for Order in which he seeks to amend his Application to include allegations concerning events that took place in February, 2010. The respondent has not filed a Form 11 setting out its position on this request. The Tribunal will hear from the parties on this issue.

14The respondents have raised an issue regarding the applicability of sections 45.1 and 34(11) to some or all of the issues that are the subject of this Application.

15There is also a potential issue regarding delay. The allegations in Application raise an issue as to whether the events dating back to 2004 and 2005 are part of a “series of events” and if they are not, whether those matters are properly before the Tribunal, or whether they are barred by s. 34(2) of the Code.

16Further directions will be issued following the April 14, 2010 hearing.