Fernandes v. Meloche Monnex Financial Services Inc., 2011 HRTO 1595

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Fernandes

Applicant

• and-

Meloche Monnex Financial Services Inc. and Stephanie Sorenson

Respondents

INTERIM decision

Adjudicator: Brian Cook

Date: August 25, 2011

Citation: 2011 HRTO 1595

Indexed as: Fernandes v. Meloche Monnex Financial Services Inc.,

1This Interim Decision addresses Requests for Order During Proceedings filed by the parties in respect of this Application which is scheduled for hearing on September 27, 28 and 29, 2011.

The Respondents' Request for Order During Proceedings

2The Application sets out a history going back to 2002. The history includes allegations of discrimination in employment. The Application was filed on October 19, 2009.

3Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

4The respondents submit that the history and allegations pertaining to any period prior to October 19, 2008 should be struck from the Application.

5The Application contains allegations concerning the period from October 19, 2008 to October 19, 2009 that are within the Tribunal's jurisdiction to deal with. The history of the applicant's employment going back to 2002 appears to be relevant to those allegations at least in terms of providing background and context for the applicant's allegations. At the hearing the applicant will be permitted to provide evidence regarding the alleged events starting in 2002.

6The Application indicates that one of the grounds of discrimination is Record of Offences. The respondents note that the Application contains no allegations relating to this ground or any indication that this ground is relevant to the Application. The applicant has not disputed this.

7The respondents do not accordingly have to respond to the ground of Record of Offences.

8The Application contains information about Saied Manish, a co-worker of the applicant. The information appears to allege that Mr. Manish experienced discrimination in employment. The respondents note that the procedure for bringing an Application on behalf of another person, set out at section 34(5) of the Code, have not been followed in this case. The respondents ask the Tribunal to rule that the applicant is not permitted to bring a complaint on behalf of Mr. Manish.

9In his Response to the respondents' Request for Order During Proceedings, the applicant states that he is not bringing an Application or complaint on behalf of Mr. Manish.

The applicant's Request for Order During Proceedings

10The applicant's Request for Order During Proceedings concerns access to documents that are in the possession of the respondents. The respondents have provided the applicant with some of the documents that he asked for but take the position that the request for the other documents is too broad, that the documents are not relevant or that they are personal in nature.

11One record that the applicant seeks access to is the record of a therapy session done by Marie Shortcliffe in January 2010. The applicant states that Ms. Shortcliffe has advised that she cannot release this record to the applicant because the applicant was referred to her by the respondents.

12The respondents are directed to provide the applicant and/or Ms. Shortcliffe with any documentation she may require from the respondents so that she can release the record to the applicant.

13Most of the other documents that have not yet been provided to the applicant concern other employees. The potential relevance of these documents is not something that I can appropriately deal with at this stage of the proceeding. Except with respect to the record from Ms. Shortcliffe, the respondent is not required to release any of the documents sought by the applicant at this time. This matter will be reviewed after I have heard evidence from the applicant.

The hearing process

14At the outset of the hearing on September 27, 2011, I will discuss options with the parties about how the hearing may proceed.

15The first option that I may ask the parties to consider is whether they may be interested in exploring settlement discussions with my assistance. Rule 15A of the Tribunal's Rules of Procedures provides as follows:

15A.1 With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

16This form of "mediation-adjudication" is frequently offered by the Tribunal and often leads to settlement. However, since the parties may not agree or the matter may not settle, the parties must come prepared to proceed with the hearing.

17Assuming that the Application proceeds to adjudication, I may propose to the parties that I will question the applicant, followed by cross examination by the respondent's counsel. This approach is commonly followed when an applicant is self-represented.

18At the hearing, I will also make such orders and directions as are required to ensure a fair, just and expeditious hearing.