David Anamguya v. Intercon Security Limited, 2011 HRTO 523

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Anamguya

Applicant

-and-

Intercon Security Limited, Blair Mitchell and Nicole Lentinello

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: March 15, 2011

Citation: 2011 HRTO 523

Indexed as: Anamguya v. Intercon Security

WRITTEN SUBMISSIONS

Intercon Security Limited, Blair Mitchell and Nicole Lentinello, Respondents Ellen A.S. Low, Counsel

1This matter has been scheduled for a hearing on the merits on March 23, 2011. A Confirmation of Hearing was sent to the parties on January 19, 2011. A Case Assessment Direction sent to the parties on February 17, 2011 (“the February CAD”) set out the issues to be dealt with in the hearing into the merits and the obligations of the parties prior to the hearing.

2The February CAD included a direction to the applicant to send a list of any witnesses he wished to call and a brief statement of each witness’s intended evidence to the respondents and to the Tribunal. On the understanding that the applicant intends to testify on his own behalf, he was directed to send to the Tribunal and the respondents a detailed statement setting out what he intends to say no later than February 24, 2011. He was also instructed to provide to the respondents and to the Tribunal, by February 24, 2011, copies of any materials or documents on which he intends to rely.

3The February CAD directed the respondents to file summaries of expected evidence, together with any revisions to its materials arising from the material submitted by the applicant, on or before March 11, 2011. The respondents were also reminded of the applicant’s Request for an Order During Proceedings dated July 19, 2010, in which the applicant requested production of his “PSD Assessment Sheets and Memo Books”. The February CAD directed the respondents to produce these documents to the applicant immediately.

4On March 4, 2011, the Tribunal received a letter from the respondents, copied to the applicant, indicating that the respondents had located memo books of the applicant dated January 9, 2007, August 22, 2007 and October 3, 2007. The respondents indicated that they are not certain what the applicant was referring to in his request for “PSD Assessment Sheets”, and stated that they required clarification.

5On March 9, 2011 the Tribunal received a document entitled “witness statement”, and other documents including medical records pertaining to the applicant, as well as a statement of delivery that indicates that the documents had been delivered by hand and by mail to counsel for the respondents.

6On March 10, 2011 the Tribunal received a letter from the respondents, copied to the applicant, that indicates that they had received none of the material that the applicant was directed to file by February 24, 2011. The letter also indicates that the memo books that the corporate respondent was directed to disclose to the applicant “contain over 150 pages of information which will take a substantial amount of time and resources to copy“, and requests that the applicant “more narrowly define his request to identify dates he believes are relevant“. The respondents also requests an adjournment of the scheduled hearing dates. The Registrar has now confirmed the respondents received the material filed by the applicant on March 9, 2011.

7Section 40 of the Code states that the Tribunal:

shall dispose of applications… by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the application.

8Fairness and justice require a balancing of the interests of the parties, in this case in complicated factual circumstances. The Tribunal’s Rules of Procedure contemplate waiving or varying procedural requirements if appropriate (see Rules 1.1 and 5.2).

9The respondents have admittedly not delivered the documents requested by the applicant.

10As noted in the February CAD, the Application, which alleges discrimination in employment, cites the Code-protected ground of sex and alleges sexual harassment and reprisal by the applicant’s supervisor. Pursuant to a letter dated March 8, 2010 from the applicant to the Tribunal and the respondents, the applicant added an allegation of “failure to accommodate employment”. On review of the documents most recently filed by the applicant, I am not satisfied that the respondents have received enough information of the “who, what, when and where” variety to be clear about the how the applicant alleges they have breached the Code.

11The applicant lacks legal representation, and I am satisfied that he has disabilities that make it difficult for him to fulfil his procedural obligations. In the circumstances, while I refuse the respondents’ request to adjourn the March 23, 2011 hearing, I make the following directions:

• The respondents agree the memo book material is “arguably relevant” to the issues in dispute before me. The respondents are required immediately to provide the applicant with a copy of this material. If the parties are unable to agree on the meaning of “PSD Assessment Sheets” and the applicant’s access to them, I will deal with this matter at the outset of the hearing;
• On March 23, 2011 I will hear only the applicant’s evidence, as well as that of the witness he has identified, on relevant issues;
• The respondents may cross-examine on this evidence but need not be prepared to present their case in response. If, during his testimony, the applicant provides details in support of his allegations which were not previously disclosed to the respondents they will be permitted to postpone all or part of their cross-examination of the applicant. At the conclusion of the applicant’s evidence the respondents may, if they consider it appropriate, make submissions on whether the applicant’s evidence supports a prima facie case of discrimination.

12I am seized of this matter.