HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Kelly

Applicant

-and-

CultureLink Settlement Services

Respondent

-and-

Canadian Auto Workers Union, Local 40

Intervenor

INTERIM DECISION

Adjudicator: Judith Keene

Date: November 4, 2011

Citation: 2011 HRTO 2000

Indexed As: Kelly v. CultureLink Settlement Services

SUBMISSIONS by

John Liam Kelly, Applicant ) Janina Fogels, Counsel

CultureLink Settlement Services, Respondent ) James Fyshe, Counsel

Canadian Auto Workers Union, ) Piper Henderson, Counsel

Local 40, Intervenor )

[1] This 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 with respect to employment by the respondent and by Canadian Auto Workers Union, Local 40 (“the Union”) on the basis of disability. A Request for an Order to dismiss the Application without hearing the merits was dismissed: 2010 HRTO 977. Hearing dates for a hearing on the merits have been set for November 22-25, 2011.

[2] A conference call was held on November 2, 2011, to deal with a number of issues arising prior to the hearing. This Interim Decision deals with as many of the issues dealt with in the conference call as possible, as the time is short to prepare for the hearing and case management direction on these issues may be given now.

Withdrawal of Application as against Union, addition of Union as an Intervenor

3A Request to Withdraw the Application as against the Union was filed by the applicant and copied to the respondents on October 17, 2011. The Union consents to the withdrawal, but wishes to continue a limited participation as an intervenor.

4The corporate respondent did not consent to the withdrawal. However, the submissions of counsel for the corporate respondent were largely concerned with the wisdom of the Union’s choice in not remaining a party. The Application alleges that the corporate respondent breached the Code in failing to ensure that the applicant received forms in a timely fashion for an application for long-term disability benefits, and in terminating his employment while he was on disability-related leave after he had temporarily vacated a bargaining unit position for a secondment to a non-bargaining unit position. Although the corporate respondent’s interpretation of the collective agreement is an issue, no one claims that the Union was involved in the alleged omission and action by the corporate respondent.

5Rule 10.5 of the Tribunal’s Rules of Procedure provides as follows:

Where a Response to the Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine.

6In the circumstances, I see no reason why the Application should not be withdrawn as against the Union.

[7] Based on the materials filed to date, I am satisfied that the Union has an interest in the outcome of the Application and relevant information regarding the facts alleged in the Application. The Union’s request to continue as an intervenor is granted. The scope of the Union’s intervention will be clarified prior to the hearing.

Outstanding disclosure issues

[8] There may be some evidentiary issues, as noted below, arising from the continuation of the Union as an Intervenor rather than as a party. Disclosure issues dealt with in the conference call were mainly those affecting the two remaining parties.

[9] There has already been one related in-person hearing in this matter (to deal with a Request for an Order to dismiss the Application without hearing the merits), as well as conference calls, Interim Decisions and Case Assessment Directions. The latest date by which the parties were required by the Rules (16 and 17) to have exchanged arguably relevant documents for the hearing on the merits was August 22, 2011. The latest date by which the parties were required by the Rules to have exchanged and filed the documents upon which they intend to rely, as well as witness lists and statements, was October 10, 2011.

[10] The applicant complied with Rules 16 and 17 earlier than required, with the exception of one item of evidence (a tape recording of a telephone call) that counsel for the applicant indicated had been located by her client after his other evidence had been filed, and which counsel for the applicant undertook to get to counsel for the respondent by November 4, 2011. The Union also complied with its then party-disclosure obligations.

[11] In the course of proceedings to date, the respondent had filed certain documents and witness statements on, respectively, October 13 and December 21, 2010. However, it had not complied with Rules 16 and 17 in respect of disclosure prior to the hearing on the merits by October 27, 2011. An Interim Decision ([2011 HRTO 1948](https://www.minicounsel.ca/hrto/2011/1948)) issued on that date made 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.

[12] As of November 2, 2011, the respondent (on October 28, 2011) had sent to the applicant and filed a list of arguably relevant documents in its possession, although the list made no mention of one class of document that had been requested by counsel for the applicant by letter of January 17, 2011. That was Item 11: “All notes, internal memos, emails, agreements and any other documents pertaining to any other secondments by CultureLink employees, January 1, 2006-January 1, 2008.” The respondent had also filed a “Supplementary document brief and supplementary witness statements” on October 31, 2011.

[13] It does not appear that the respondent has copied the Union with all of its disclosure material.

[14] In attempting to explain why the Interim Order of October 27 had not been fully complied with, counsel for the respondent indicated that he had not understood the Order, and that he had only recently read the relevant Rules. In view of the fact that counsel for the respondent has been dealing with this Application since 2009, and has been reminded of the existence and terms of the Rules in Interim Decisions, CADs and during conference calls, it appears to me to me that the respondent, while aware of its disclosure obligations under the Rules, has shown little interest in its obligations.

[15] By way of ensuring that the parties and the Intervenor at least had clear information concerning the documents on which the respondent intends to rely at the hearing on November 22, I reviewed the respondent’s filings with counsel. Counsel for the respondent agreed that the respondent will rely upon all of its filings to date, as well as the documentary evidence (largely medical reports) referred to in Interim Decision [2010 HRTO 977](https://www.minicounsel.ca/hrto/2010/977).

[16] By agreement between counsel, the respondent will ensure that copies of the documents on its list of arguably relevant documents are received by the applicant and the Union no later than November 7, 2011. Counsel for the respondent has undertaken to contact his client to pursue the documents described in Item 11 of the applicant’s letter of January 17, 2011, and to deliver to the applicant and the Union his client’s response no later than November 7, 2011.

[17] The Union will be relying on documents it served and filed, as a party, on December 20, 2010. As of its change from a party to an Intervenor, it does not undertake to call the witnesses included on its witness list.

[18] As noted above, the applicant has already complied with his obligation to list and copy documents on which he intends to rely, other than the telephone recording noted above, which should reach the respondent by November 4, 2011.

[19] The applicant has as of this date not received disclosure to the extent required by the Rules, and any late-disclosure agreements between counsel are not an indication that he has waived the right to raise any issues relating to late disclosure, or non-disclosure, at the hearing.

[20] Counsel have agreed that one of the applicant’s witnesses, Joan Kent, may give evidence by telephone, due to recent surgery.

[21] There are three evidentiary issues in respect of documents and information that might be in the possession of the Union. On January 17, 2011, the applicant by letter requested certain documents from the Union (then a party). Among the documents was Item 4 “All notes, internal memos, emails and any other documents, including negotiating committee minutes, pertaining to first and second Collective Agreements respecting negotiations about Arts. 5…7…&40…”. Counsel for the Union has refused to produce these. During the conference call, counsel for the applicant indicated that the applicant no longer requires this material in relation to Article 5. Also during the conference call, counsel for the applicant raised a question as to whether the applicant could still rely on the arguably relevant documents that were disclosed by the Union on February 9, 2011, and a request that the Union provide contact information for two prospective witnesses, Ajith Aluthwatta and Linden Huizinga.

[22] Counsel for the applicant, at my request, has sent an e-mail (dated November 2, 2011) clarifying the issues outstanding at this point and requesting direction. All participants have agreed to make submissions about these requests in writing to the Tribunal no later than November 11, 2011.

[23] At the request of all counsel, I have agreed that evidence and argument concerning all issues relevant to an Order that might be made if the Tribunal finds a breach of the Code, including “compensation for injury to dignity, feelings and self-respect” will be dealt with in the November hearing, but that evidence and submissions relevant to calculation of monetary compensation in the nature of “special damages” may be reserved until after a decision on the merits, and submitted only if there is a finding of breach of the Code.

Disclosure of Contact Information for Proposed Witnesses

[24] The applicant is considering Ajith Aluthwatta and Linden Huizinga as witnesses, and does not have up-to-date contact information for these individuals. It is possible that some or all of the necessary information is in the possession of the Union. However, the Union objects to disclosing this information, as well as certain other information requested by the applicant, and an arrangement has been made that the parties and the intervenor will file written submissions as to a proposed Order under Rule 1.7, by November 11, 2011.

[25] In the meantime, it is clear that CultureLink Settlement Services, now the sole respondent, may have contact information for these individuals. While not consenting to disclose, counsel for the respondent indicated that his client would disclose its latest contact information for Ajith Aluthwatta and Linden Huizinga if ordered to do so.

[26] It is clear on the basis of filed materials and hearings to date that Ajith Aluthwatta and Linden Huizinga may have relevant evidence to give at the hearing. The respondent is ordered to produce this information to counsel for the applicant on or before November 7, 2011.

[27] There will be a further Interim Decision or Case Assessment Direction in regard to the other matters dealt with in the conference call of November 2, 2011.

Order

[28] The Tribunal makes the following Order and directions:

a) The Application is withdrawn as against the Union. The Union’s request to continue as an Intervenor is granted, and the style of cause is amended accordingly.

b) The respondent is ordered to make its most recent contact information for Ajith Aluthwatta and Linden Huizinga available to the applicant by no later than November 7, 2011.

c) The respondent is ordered to ensure, by November 11, 2011, that the Intervenor has received all of its disclosure filings to date. The respondent must copy the Intervenor on all subsequent filings.