Kelly v. CultureLink Settlement Services, 2011 HRTO 1948

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Kelly

Applicant

-and-

CultureLink Settlement Services and Canadian Auto Workers Union, Local 40

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: October 27, 2011

Citation: 2011 HRTO 1948

Indexed as: Kelly v. CultureLink Settlement Services

WRITTEN SUBMISSIONS by

John Liam Kelly, Applicant ) Janina Fogels, Counsel

CultureLink Settlement Services, Respondent ) James Fyshe, Counsel

Canadian Auto Workers Union, )

Local 40, Respondent ) Piper Henderson, Counsel

1This is an Interim Decision made in respect of an Application filed on March 16, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment by the respondents on the basis of disability. Hearing dates have been rescheduled; they are now set for November 22-24, 2011. There have been a number of Case Assessment Directions (CADs) and Interim Decisions in respect of this matter. The most recent CAD, issued on January 26, 2011, was in part a reminder to the corporate respondent concerning disclosure obligations under the Tribunal’s Rules of Procedure.

2The applicant has filed a Request for an Order During Proceedings, together with related documents. The Request is for production of documents described and requested by counsel for the applicant by letter to counsel for the respondent dated January 17, 2011. The letter, in addition to copies of subsequent e-mails, reflects efforts by counsel for the applicant to obtain production of arguably relevant documents. The correspondence that immediately predates the Request is a letter from counsel for the corporate respondent dated October 5, 2011, in which counsel for the corporate respondent directs counsel for the applicant to arrange to visit his office to “indicate which documents she believes are relevant”, a statement that counsel for the corporate respondent will then “indicate” which documents “we feel are not admissible”, and an assertion that the applicant will be charged a fee for copies of any documents the respondent agrees to disclose.

3The Union respondent responded, but takes no position on the Request. Counsel for the corporate respondent, in his Response to the Request, takes the position that his approach is reasonable and that it is the responsibility of counsel for the applicant to indicate why it is not appropriate.

4Having reviewed the applicant’s letter of January 17, 2011, I find that the description therein is of documents which, if they exist, would be arguably relevant to the facts and issues in this case. It is clear that the corporate respondent has not complied with the Rules concerning disclosure, and insofar as its Response gives a reason for non-compliance, the reason is not adequate.

5The Tribunal makes the following Order:

a) If it has not already done so, the corporate respondent must send the applicant a list of all arguably relevant documents in its possession immediately.

b) If the respondent takes the position that any document described on the list in the January 17, 2011 letter from the applicant’s counsel does not exist or is not in its possession, it must send a statement to this effect to the Tribunal, copying the respondent, no later than November 1, 2011. If the respondent takes the position that any document described on the list is exempt from disclosure because of privilege, the respondent must, no later than November 1, 2011, deliver submissions describing the nature of the document(s) and the reason(s) for making the claim to the Tribunal, copying the applicant. Otherwise, the respondent must deliver the documents on the applicant’s list to the applicant no later than November 1, 2011.

c) If it has not already done so, the corporate respondent must, no later than November 1, 2011, send the applicant and the Tribunal a list of documents upon which it intends to rely and a copy of each document on the list or confirmation that each document has already been provided in accordance with Rule 16.1, as well as complying with its other obligations under Rule 16.

d) If it has not already done so, the corporate respondent must, no later than November 1, 2011, comply with Rule 17.

6The corporate respondent is reminded of Rules 16.4 and 17.4. If the corporate respondent continues to resist its disclosure obligations, I will deal with any submissions by counsel in respect of the need for any order under Rule 1.7 on an expedited basis.