Robinson v. Landmark Inn, 2011 HRTO 1781

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tanya Robinson

Applicant

-and-

Landmark Inn

Respondent

INTERIM decision

Adjudicator: Judith Keene

Date: September 29, 2011

Citation: 2011 HRTO 1781

Indexed as: Robinson v. Landmark Inn

WRITTEN SUBMISSIONS

Tanya Robinson, Applicant ) On her own behalf

Landmark Inn, Respondent ) Danalynn MacKinnon, Counsel

1This Interim Decision in respect of an Application filed on June 19, 2009 deals with disclosure and procedural issues for the next day of hearing, scheduled for October 11, 2011.

2This matter has a lengthy history, largely although not entirely because of disability-related accommodation of the applicant. In the course of dealing with this matter, both the applicant and the respondent have made comments, and references to alleged facts, that are not relevant to the subject-matter of the Application. It appears that the parties are involved in one or more other disputes, although I have no reason to believe that other litigation is involved. The Application has been the subject of a number of Interim Decisions and Case Assessment Directions (CADs).

3The applicant lacks legal representation and her disabilities have made it difficult for her to fulfil her procedural obligations. In an effort to accommodate the applicant’s disability-related needs as indicated in Rule 2 of the Tribunal’s Rules of Procedure (“the Rules”) while ensuring that the process was fair for the respondents, the Tribunal issued an Interim Decision (2010 HRTO 1393). The Interim Decision set a day to hear the applicant’s evidence only, with the respondent not required to present its case on that day, and provision for rulings to ensure fairness; for example that the respondent be allowed to postpone cross-examination in the event that absence of will-say statements created prejudice.

4The applicant gave her evidence on the merits and was cross-examined on July 7, 2010. Pursuant to Interim Decision 2010 HRTO 1393, she was required to present the whole of her case on July 7, 2010. She called no witnesses.

5The respondent’s request that the Application be dismissed because no prima facie case had been established was dismissed by Interim Decision issued July 15, 2010 (2010 HRTO 1543, “the July Interim Decision”).

6The Registrar has sent the parties a Notice confirming a further hearing date of October 11, 2011. As noted in the July Interim Decision, the hearing will deal with the respondent’s evidence and the submissions of the parties.

7On August 31, 2011, I issued a Case Assessment Direction (“the August CAD”) dealing with issues arising from the July 7 hearing, and with a written request by the respondent, dated July 28, 2011, that the next day of hearing be recorded.

8The August CAD noted that the applicant had testified that

…after being refused a room by the respondent, she attended at a hospital, in part in order to obtain written confirmation that she was not intoxicated. She also mentioned having obtained a cab to get to one of the hotels at which she stayed after she left the respondent hotel. Finally, she alleged that after she filed her Application, she had a meeting with Tom Kan, who she indicates tried to settle the matter, and that she gave the cab receipt and the medical record from her treatment after the incident to Mr Kan [para 4]

The August CAD also noted the applicant’s promise to try to produce two other items of documentary evidence, and directed her, if she was successful in finding them, to copy these to the respondent and to the Tribunal:

If the applicant can produce these records, she must do so without delay, copying both the respondent and the Tribunal. If the applicant produces these documents, I will allow the respondent to undertake further cross-examination in respect of these records. [para 9]

9With its confirmation concerning documents and witnesses for the October hearing date, the respondent included a copy of two earlier filings. One of these is entitled “List of Documents of the Respondent Landmark Inn”. That list includes a notation stating that “Correspondence from Tom Kan to Tanya Robinson” is or was in the respondent’s possession. The respondent has indicated that it objects to producing the correspondence “on the grounds of privilege”. It also states that “Tom Kan is not a party therefore we cannot produce the email”. In view of the applicant’s July testimony concerning Mr Kan, I noted in the August CAD that

correspondence between Mr Kan and the applicant during the relevant period may be relevant to the merits of the Application. If the respondent wishes to maintain that these records are privileged and should not be subject to disclosure, the respondent must deliver written submissions in support of this position to the applicant and to the Tribunal by September 9, 2011. The applicant will have until September 17, 2011 to respond to the respondent’s submissions, and I will issue an Interim Decision as soon as possible after that…if the respondent wishes to call Mr Kan as a witness, it may do. In this eventuality, the respondent must file a brief statement summarizing Mr Kan’s expected evidence by September 19, 2011 [paras 10 and 12]

The attendance of an identified witness, email evidence and billing records

10On September 6, 2011, the Tribunal received three e-mails from the applicant. The e-mails, which were copied to counsel from the respondent, appear to raise issues further to the August 31 CAD. In the first, marked 11:46 AM, the applicant states that she “has requested that the respondent produce the Landmark Inn billing records for the witnesses”. In the same e-mail and another marked 5:05 PM, the applicant appears to indicate that she wishes to call Mr. Kan as a witness. The applicant also states that she is uncomfortable with the hearing being recorded, and disagrees with the respondent’s suggestion that email between herself and Mr. Kan is privileged. No other representations in response to the August CAD have been received from the applicant and the date for submissions has passed.

11On September 9, 2011, the respondent filed representations directed to the August CAD. The respondent maintains its assertion of privilege and raises other arguments in respect of the emails, and does not address whether it wishes to call Mr. Kan. The Tribunal received no other representations in response to the August CAD from the applicant prior to the date for submissions, although the applicant did send two further e-mails dated September 29, 2011.

12By one email sent September 6, 2011 marked 11:46 AM and another marked 5:05 PM, the applicant appears to indicate that she wishes to call Mr. Tom Kan as a witness. This wish is again referred to in the emails of September 29. The applicant is reminded that she gave her evidence on July 7, 2010. The CAD of June 18, 2010, which set the date and terms for the hearing, included the following paragraph:

7The applicant is also responsible for arranging the attendance on July 7 of any witness she requires. Failure to do so will result in that witness’s evidence not being heard. If the applicant wants to ensure the attendance of a witness, summonses to witnesses may be obtained from the Registrar’s Office.

13The applicant may not call further evidence or witnesses, with the possible exception of the discharge record from the applicant’s hospital stay before she approached the respondent for a room, and any documentary evidence that would indicate that her debit card had sufficient funds to enable her to pay the deposit on the day in question (November 20, 2008), both of which the respondent requested on July 7 2010, and the applicant stated she would try to obtain.

14The August CAD permitted the respondents to call Mr. Kan later than would otherwise have been permitted, subject to the provision of witness statement. While the respondent has not addressed this issue in its submissions, it appears that the respondent has decided not to call Mr. Kan.

15It is not clear whether there exist only one or more emails between the applicant and Mr. Kan that may be arguably relevant to the merits of this proceeding. The respondent indicates that there is only one e-mail. The applicant refers to email in the plural. No one has disclosed or alleged anything concerning the exact date(s) or content of any such correspondence, other than the assertion that the email exchange was subsequent to the date of the alleged breach of the Code.

16It appears from the oral and documentary evidence to date, with the caveat that the respondent’s oral evidence has not been heard, that correspondence between the applicant and Mr Kan subsequent to the incident that is the subject of the Application might be arguably relevant circumstantial evidence relating to the accuracy of the applicant’s recollection that there was a meeting between the applicant and Mr Kan, and that she gave Mr Kan the cab receipt and the medical record from her treatment at the hospital after the alleged breach.

17There has been considerable correspondence on the issue of the email(s); the applicant has indicated she would produce a copy of the email(s) and she has not. The respondent has indicated that email correspondence between the applicant and Mr. Kan in its possession is privileged, but has submitted no legal authority for this assertion.

18The respondent is reminded that the Rules give the Tribunal broad powers to determine how a matter may be dealt with. The following is particularly relevant to this issue:

1.1. The Tribunal may exercise any of its powers under these Rules at the request of a party or on its on initiative, except where the Rules provide otherwise.

1.2. The Tribunal will determine how a matter will be dealt with and may use procedures other than traditional adjudicative or adversarial procedures.

1.3. In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

…

k) on the request of a party, direct another party to adduce evidence or produce a witness when that person is reasonably within that party’s control…

o) advise when additional evidence or witnesses may assist the Tribunal;

p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form;

…

w) take any other action that the Tribunal determines is appropriate.

19In her email of 5:30 PM, September 29, 2011, the applicant states that she has made “at least 2 previous written requests for this material to be disclosed, but my review of filings to date reveals no such request. In view of the wording of Rule 1.3 (k), I do not order in these circumstances that the respondent produce the email correspondence in its possession.

20The parties are reminded that, in respect of any issue relevant to this Application, the Tribunal may draw an adverse inference from failure to submit evidence or call witnesses (see for example Dodds v. 2008573 Inc. (Sharks Sports Pub), 2007 HRTO 17). The parties may address this issue in their closing submissions.

21In respect of the applicant’s request that billing records of the Landmark Inn be produced, the request for production is very late, the applicant has already given her evidence, and it is not clear to me why, even if such records revealed that “stays were paid for by a 3^rd party who is connected to the Hotel”, this would be relevant to the issues raised in this Application. Accordingly, I do not order the production of these records.

Recording the October Hearing

22The respondents have made a request to have the next hearing day recorded. The applicant has indicated only that she is uncomfortable with the rest of the hearing being recorded.

23In the respondent’s submissions, it indicated that it believes that “the facts in the case will not be fairly recorded”. As this point of view appears from the respondent’s submissions to be based on the Tribunal’s efforts to accommodate the applicant’s disability-related needs, and on my not having reviewed all of the evidence heard so far in an Interim Decision, I do not find this belief reasonable. Notwithstanding this, I see no reason to deny consent to record in these circumstances. I appreciate that the applicant feels uncomfortable, but she has already given her evidence. Pursuant to the Tribunal’s Practice Direction on recording at hearings, the respondent is permitted to record the rest of the proceedings, subject to the conditions set out below.

24In other cases where the Tribunal has allowed a matter to be recorded, it has imposed conditions on recording to ensure the matter proceeds in an orderly manner, and I think it is appropriate to do so here. The respondent’s request to record the rest of the hearing is granted, subject to the respondent agreeing to the following undertaking at the hearing:

1. The respondent shall provide a copy of the recording to the Tribunal and to the applicant within five days of the hearing. The respondent is not obliged to have the recording transcribed.
2. The Tribunal retains the right to halt the recording in the event that it causes delay or disruption.

25The parties should be aware that it is impossible to guarantee the quality of a recording and therefore the recording should not be seen as a substitution for taking notes. Further, in accordance with the Practice Direction, the recording will not form part of the Tribunal’s record of proceedings including the record filed in respect of any application made under the Judicial Review Procedures Act. R.S.O. 1990, c. J.1.

26Further procedural directions will be issued if necessary.