Richard Reid v. Marriott Hotels of Canada Ltd., 2011 HRTO 2116

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Reid

Applicant

-and-

Marriott Hotels of Canada Ltd.

Respondent

interim DECISION

Adjudicator: Sherry Liang

Date: November 22, 2011

Citation: 2011 HRTO 2116

Indexed as: Reid v. Marriott Hotels of Canada Ltd.

1The applicant filed an Application 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 on the grounds of disability and sex.

2Mediation did not result in settlement of the Application. The purpose of this Interim Decision is to address the applicant’s Requests for Orders During Proceedings (RFOP), and to require further submissions with respect to the timeliness of the Application. The respondent has filed a RFOP requesting dismissal on the basis that the Application is untimely.

APPLICANT’S REQUEST REGARDING LATE RESPONSE

3The Tribunal issued the Notice of Application on February 3, 2011 directing the respondent to file a Response by March 8, 2011. The respondent, through counsel, sought an extension of time and the Registrar granted the request, directing that the Response be filed by March 21, 2011. The respondent complied with the direction, and filed its Response on March 21, 2011. On March 30, 2011, the Tribunal sent the Response to the applicant and the applicant filed a Reply on April 13, 2011.

4On June 1, 2011 the applicant filed a RFOP requesting an order “that the Respondent is deemed to have waived all rights with respect to further notice and participation in this proceeding” and that the “Respondent has accepted all allegations in the application”. The reason given for the Request was that the respondent failed to file a response “within the prescribed timeframe.”

5The respondent responded to the Request, explaining the circumstances under which an error was made in the filing of the Response.

6On my review of the matter, it does not appear that the Response was late, as it was received by the Tribunal on March 21, 2011. In any event, there is no prejudice and no basis for the orders sought by the applicant. The applicant received the Response from the Tribunal and filed a Reply. The applicant’s Request is dismissed.

APPLICANT’S REQUEST FOR PRODUCTION

7Following mediation, the applicant filed a RFOP seeking an order for production of the applicant’s “file”, presumably, a personnel file. The respondent opposes the order on the basis, among other things, that it is unnecessary as Rule 16 of the Tribunal’s Rules of Procedure already addresses the production of documents.

8The Request is denied as premature. Rule 16 provides for disclosure of arguably relevant documents, which are not privileged, after the Tribunal sends a Confirmation of Hearing. No such Confirmation of Hearing has been sent. There is nothing preventing the parties from disclosing in advance of the timelines under Rule 16 but the Tribunal will not normally consider a request for disclosure before that date has passed. The applicant may renew the request following the deadline for disclosure under the Tribunal’s Rules if he believes that the respondent has not disclosed documents as required.

THE RESPONDENT’S REQUEST TO DISMISS

9The Tribunal has not ruled on the respondent’s request to dismiss the Application as untimely. On my review of the material before me, it appears that it may be appropriate to address this request as a preliminary issue and on the basis of written submissions.

10The last event covered by the Application is June 30, 2009, the date of the applicant’s termination from employment. The Tribunal’s Notice of Application states that the Application was filed on November 12, 2010. The applicant submits that June 5, 2010 should be treated as the Application filing date, on the basis that on that date, he sent a Form 1-A to the Tribunal by regular mail. It is not known on what date the Form 1-A was received, but on July 12, 2010 the Tribunal returned it to the applicant and advised him, among other things, that in order to file an application, he must complete the Tribunal’s Form 1.

11The applicant submitted a Form 1 to the Tribunal on November 12, 2010 although it was dated as having been signed on August 18, 2010.

12In their submissions, the parties should address whether November 12, 2010, June 5, 2010 or another date should be treated as the filing date of this Application. They should address whether, if November 12, 2010 is found to be the filing date, the delay in making this Application was incurred in good faith and in this regard the applicant should provide an explanation for why he did not file his Application until November 12, 2010 including why his Form 1 Application was dated August 18, 2010 but not received by the Tribunal until November 12, 2010.

13The parties should also address whether any substantial prejudice will result to any person affected by the delay.

14On receipt of the parties’ additional submissions the Tribunal may decide whether the Application should be dismissed as untimely, or make further directions.

ORDERS AND DIRECTIONS

15The Tribunal makes the following order and directions:

a. The applicant’s RFOP of June 1, 2011 regarding the respondent’s filing of its response is denied.

b. The applicant’s RFOP seeking an order for production of the applicant’s “file” from the respondent is denied as premature.

c. The applicant’s submissions on the timeliness of the Application shall be delivered and filed within three weeks of the date of this Interim Decision. The respondent may respond to those submissions within two weeks of its receipt of those submissions. The applicant may reply within one week of the respondent’s submissions.

16I am not seized of this matter.