Mary Babra v. Ontario Lottery and Gaming Corporation, 2011 HRTO 381

Human Rights Tribunal of Ontario

B E T W E E N:

Mary Babra

Applicant

-and-

Ontario Lottery and Gaming Corporation, Lou Pascale, Lauren Ross, Lisette Smith, and Bonnie Wild

Respondents

INTERIM DECISION

Adjudicator: David Shannon Date: February 22, 2011 Citation: 2011 HRTO 381 Indexed as: Babra v. Ontario Lottery and Gaming Corporation

APPEARANCES

Mary Babra, Applicant: Self-represented

Ontario Lottery and Gaming Corporation, Lou Pascale, Lauren Ross, Lisette Smith, Bonnie Wild, Respondents: Tom Moutsatsos, Counsel

1This is an Application made under s.53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code) dated March 16, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on August 3, 2007.

2The respondents have asked the Tribunal to dismiss the Application for failure to state a prima facie case of discrimination and for a failure to disclose and produce documents in accordance with the Tribunal's Rules and directions of the Registrar-Transition.

3In particular, the respondents claim they are prejudiced by the applicant's failure to disclose all arguably relevant documents, including the material specifically referenced in the Tribunal's correspondence dated July 23, 2009 and March 26, 2010, namely:

• Any and all documents upon which the applicant seeks to rely.
• The magazine picture ad envelope referenced in the complaint.
• Existing medical reporting, notes, tests from December 2006 to January 2009 with respect to the applicant's condition(s) for which accommodation was sought.

4The respondents also seek the applicant's consent to an extension of time to produce their list of witnesses.

5With respect to the disclosure and production issues the applicant explained she had legal counsel when this matter was initiated and thought her lawyer had forwarded all the necessary documentation to respondent counsel. She also thought that because the medical documents in question were held by the respondents' insurer they would have automatic access to her file.

6I accept the applicant's explanation that she believed her legal representative would follow through with activities that he had promised and genuinely misunderstood her obligations with respect to production her medical documents.

7However, in Ouwerlis v. New Locomotion 2009 HRTO 335 the Tribunal stated at paras. 4-5:

Human rights applications are serious matters. The Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant's rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

The applicant must therefore treat this matter seriously, and provide full disclosure of all relevant documents. Also, although there may be some sensitivity to procedural misunderstanding if an individual is not represented by counsel, this concern cannot extend beyond what is reasonable. Having said that I am not satisfied the circumstances presented here are such that the Application should be dismissed for the failure to comply with the requirements for production and disclosure.

8The Tribunal makes the following directions:

(1) If the applicant intends to proceed with the Application, she or her representative shall disclose all arguably relevant documents to the respondents including the material specifically referenced in the Tribunal's correspondence dated July 23, 2009 and March 26, 2010 and deliver a witness list, summary of expected evidence, and copies of the documents upon which he intends to rely to the respondents and the Tribunal no later than March 11, 2010.

(2) Should the applicant fail to comply with these directions the Application may be dismissed as abandoned.

9The respondents also ask that the Application be dismissed because there is no prima facie case of discrimination that would call into question a breach of the Code. Respondent counsel made limited submissions on this argument noting primarily that the applicants limited disclosure resulted in her being unable to make a prima facie case. Since I have allowed the applicant time to submit further documentation subject to the above direction, I believe that it would be premature to rule on this issue until that evidence is submitted to the Registrar-Transition and the respondent. If the Application proceeds, and the respondent still wishes to argue this point, the adjudicator hearing the Application will address this issue.

10I am not seized.