HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenneth Chang
Applicant
-and-
Regis Holdings (Canada) Ltd.
Respondent
INTERIM DECISION
Adjudicator: Eric Whist Date: August 15, 2011 Citation: 2011 HRTO 1512 Indexed as: Chang v. Regis Holdings
1This is an Application alleging discrimination in employment on the basis of age and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses two Requests by the respondents. One is to dismiss the Application on the basis that the applicant failed to comply with the Tribunal’s directions. The second is that in the event the Tribunal determines that it will not dismiss the Application, the respondent be given an extension of time in order to disclose documents, will says and witness statements until a reasonable time after the Tribunal has ruled on the respondent’s first Request.
REQUEST TO DISMISS THE APPLICATION
Background
2On February 28, 2011 the respondent filed a Request for an Order During Proceedings asking that a personal respondent be removed and that the applicant be directed to provide particulars. In an Interim Decision dated March 21, 2011, 2011 HRTO 558, the Tribunal granted the Request to remove the personal respondent and directed the applicant to provide particulars, in this instance the names of female haircutters who allegedly were complained about in order for the respondent to be able to respond to the allegations of differential treatment based on age and sex and to prepare its case. The applicant did not provide these particulars, as directed.
3In an Interim Decision dated June 23, 2011, 2011 HRTO 1206, the Tribunal ordered the applicant to provide the particulars identified in the March 21, 2011 Interim Decision and to do so by July 13, 2011.
4On July 25, 2011 the respondent filed a further Request for an Order during Proceedings asking that the Tribunal dismiss the Application on the basis that the applicant had failed to provide the particulars that the Tribunal had directed him to provide in its March 21, 2011 and June 23, 2001 Interim Decisions.
5On July 25, 2011 the applicant filed his Response to the respondent’s July 25, 2011 Request to dismiss stating that the applicant had, in fact, attempted to provide the required particulars to the respondent on July 7, 2011 but that the materials had not reached the respondent due to a typographical error made in the respondent’s email address.
6On July 25, 2011 the respondent wrote to the Tribunal to express concerns about the applicant’s claim that he attempted to send the required particulars to the respondent on July 7, 2011 but had been unsuccessful because of a typographical error. The respondent argued that given that the respondent did not actually receive the particulars until July 25, 2011 the applicant missed the required deadline of July 13, 2011 and on this basis the Tribunal should dismiss the Application.
Decision
7On July 8, 2011 the Tribunal received an email package from the applicant dated July 8, 2011. The package included a letter to the Tribunal dated July 7, 2011 providing the required particulars. The applicant also included a Form 23, a “Statement of Delivery”, on which the applicant indicated that he had sent the particulars to the respondent on July 7, 2011 at fgallop@fillion.on.ca. This is not the respondent’s email address. The correct address is fgallop@filion.on.ca.
8I am satisfied, based on the documents the applicant filed with the Tribunal on July 8, 2011, that the applicant did attempt to send the required particulars to the respondent on July 7, 2011 but made a mistake with the respondent’s email address. In my view the Application should not be dismissed for such a clerical error. I am satisfied that the applicant did, in good faith, attempt to meet the deadline set by the Tribunal and I see no substantive prejudice to the respondent by the slight delay in receiving this information.
REQUEST FOR AN EXTENSION OF TIME
Background
9On August 4, 2011 the respondent filed a further Request for an Order During Proceedings asking for an extension of time to file documents if the Tribunal determines not to dismiss the Application and that the matter will proceed. The Tribunal has scheduled a hearing in this matter for February 12 and 13, 2012 and set August 12, 2011 as the deadline for the parties to exchange arguably relevant documents and December 30, 2011 as the deadline for the parties to disclose the documents they wish to rely on as well as their list of witnesses and the witnesses’ will say statements.
Decision
10Given the timing of the decision denying the respondent’s Request to dismiss the Application, the Tribunal will extend the time the parties have to disclose to each other all arguably relevant documents from August 12, 2011 to September 12, 2011. However, the Tribunal will not change the December 30, 2011 deadline for the parties to disclose the documents they wish to rely on and their list of witnesses and the witnesses’ will say statements. In my view the parties will still have sufficient time between the issuing of this Interim Decision and December 30, 2011 to prepare the documents they wish to rely on as well as their list of witnesses and the witnesses’ will say statements. It is important that these materials be exchanged far enough in advance of the scheduled hearing to allow the parties time to prepare for the hearing.
11I am not seized of this matter.
Dated at Toronto, this 15th day of August, 2011.
”signed by”___ Eric Whist Vice-chair