McCreight v. Home Hardware Stores Limited, 2011 HRTO 1488

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William McCreight

Applicant

-and-

Home Hardware Stores Limited

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: August 9, 2011

Citation: 2011 HRTO 1488

Indexed as: McCreight v. Home Hardware Stores Limited

1The purpose of this Interim Decision is to address the respondent’s Request for an Order During Proceeding (Form 10) seeking production of documents from the applicant.

2The applicant filed his Application on March 31, 2011alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The respondent filed its Response on May 27, 2011 and its Request for production on June 14, 2011. The applicant filed a Response to the Request (Form 11) opposing the Request.

3In the Request, the respondent seeks extensive production of documents from the applicant, in particular medical records, on the basis that the information sought is arguably relevant to the issues raised in the Application and Response. The respondent largely relies on case law from this Tribunal that pre-dates the reforms that provided for direct access to the Tribunal.

4Rule 16 of the Tribunal’s current Rules of Procedure set out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case. Indeed, the parties have expressed an interest in participating in mediation and that will take place first. Only if the matter does not settle at mediation will the Application be set down for hearing.

5Under the new Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent.

6The respondent has not identified any exceptional circumstances in this case. The applicant has apparently shared some medical information with the respondent. In any event, the respondent was able to file a Response, which is detailed. The applicant is, of course, encouraged to share additional documents prior to mediation if such disclosure would facilitate the mediation process, but such disclosure would be voluntary. The respondent’s request for production at this stage is denied as premature.

7The matter will be set down for a one-day mediation as requested by the respondent.

8I am not seized of this matter.