Ishaac Filali v. WoodGreen Community Services, 2012 HRTO 1035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ishaac Filali

Applicant

-and-

WoodGreen Community Services

Respondent

-and-

Workers United Ontario Council

Intervenor

INTERIM DECISION

Adjudicator: Mark Hart Decision Date: May 24, 2012 Citation: 2012 HRTO 1035 Indexed as: Filali v. WoodGreen Community Services

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability, colour and age.

2This Interim Decision is written in response to a Request for Order during Proceedings filed by the respondent and dated May 7, 2012, seeking compliance by the applicant with his disclosure obligation under Rule 16.1 of the Tribunal's Rules of Procedure.

3Rule 16.1 of the Tribunal's Rules requires each party to deliver to every other party a list of all arguably relevant documents in their possession and a copy of each document contained on the list (except where privilege is claimed). This disclosure is to be made within 21 days after the Tribunal sends the Confirmation of Hearing.

4The Confirmation of Hearing in this matter for the re-scheduled hearing dates of June 13 and 14, 2012, was sent to the parties on December 20, 2011. This Notice also included confirmation that the parties were to make the disclosure required by Rule 16.1 by January 10, 2012. The respondent states that no disclosure was made by the applicant by this date or to the present time. While the Request for Order was served on the applicant, the applicant has not filed any Response to Request for Order within the required 14 days.

5I am aware from review of the file that the applicant appended certain medical and other documents to his Application, which was served on the respondent. If the applicant has in his possession any other medical documents relating to his ability to work during the period from February 2010 to the present, any other documents from this period relating to communications with his employer and/or Acclaim Ability Management, or any other documents relating to the matters at issue in this proceeding, then all of these documents need to be disclosed to the respondent immediately and in any event by no later than June 4, 2012.

6In addition, pursuant to Rules 16 and 17 of the Tribunal's Rules, each party must disclose to the other party and file with the Tribunal the documents they intend to rely upon for the hearing, a list of witnesses they intend to call at the hearing to give evidence, and a description of what each witness will say. This material was to have been filed with the Tribunal no later than 45 days prior to the commencement of the hearing, which was by April 30, 2012. To date, no party has complied with their pre-hearing obligations.

7In the Request for Order, the respondent has asked that it be permitted to file its pre-hearing material seven days after receiving disclosure of the applicant's arguably relevant documents. This is not an appropriate course of action for any party to take. If a party has failed to make disclosure in accordance with Rule 16.1, the Tribunal expects that any such issue will be raised by the opposing party in a timely manner and not used as justification for its own failure to comply with its obligations under the Rules. While I appreciate that there may be some elements of the applicant's disclosure that may require additional evidence from the respondent, the issues in this proceeding are fully and clearly set out in the Application and Response, and it is my view that the respondent could have complied with its pre-hearing obligations by the April 30, 2012 deadline.

8That said, I am prepared to allow the respondent until June 4, 2012, to comply with its pre-hearing obligations. If there are new issues arising from any further disclosure provided by the applicant which need to be addressed in the respondent's materials, I am prepared to allow the respondent an opportunity to file any supplementary material by no later than June 8, 2012.

9The applicant also needs to comply with his pre-hearing obligations. If the applicant intends to provide evidence himself at the hearing and is relying only upon the statements made in his Application, then he simply needs to confirm this in writing to the Tribunal and the respondent. If the applicant intends to provide evidence regarding any matters relevant to the issues raised in this proceeding that is in addition to what is set out in his Application, then the applicant needs to provide a statement setting out what that evidence will be. If the applicant intends to call any other witnesses to testify at the hearing, then he needs to identify whose these individuals are and provide a description of their proposed evidence. The applicant also needs to confirm what documents he intends to rely upon at the hearing and provide the respondent and the Tribunal with any additional documents beyond those appended to his Application. The applicant is directed to do all of this by no later than June 4, 2012.

10If the applicant fails to comply with his disclosure obligation and his pre-hearing obligations by June 4, 2012, this Application may be dismissed as abandoned.

11Any issues arising out of the late disclosure of materials may be raised at the hearing.

ORDER

12Accordingly, I hereby make the following Order:

a. By no later than June 4, 2012, the applicant shall disclose to the respondent all documents relating to the matters at issue in this proceeding which were not appended to his Application, including any medical documents relating to his ability to work during the period from February 2010 to the present and any other documents from this period relating to communications with his employer and/or Acclaim Ability Management;

b. By no later than June 4, 2012, the applicant shall serve on the respondent and file with the Tribunal a list of all witnesses he intends to call to give evidence at the hearing and a description of what each witness will say. If the applicant intends to provide evidence himself at the hearing and is only relying upon the statements made in his Application, then he simply needs to confirm this in writing to the Tribunal and the respondent. If the applicant intends to provide evidence regarding any matters relevant to the issues raised in this proceeding that is in addition to what is set out in his Application, then the applicant needs to provide a statement setting out what that evidence will be. If the applicant intends to call any other witnesses to testify at the hearing, then he needs to identify whose these individuals are and provide a description of their proposed evidence;

c. By no later than June 4, 2012, the applicant shall confirm what documents he intends to rely upon at the hearing and provide the respondent and the Tribunal with any additional documents beyond those appended to his Application; and

d. By no later than June 4, 2012, the respondent shall comply with its pre-hearing obligations under Rules 16 and 17. If there are new issues arising from any further disclosure provided by the applicant which need to be addressed in the respondent's materials, the respondent shall have an opportunity to file any supplementary material by no later than June 8, 2012.