J.D. v. Grand Erie District School Board, 2012 HRTO 1235

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.D.

Applicant

-and-

The Grand Erie District School Board and Sandra Magnani

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: June 22, 2012

Citation: 2012 HRTO 1235

Indexed as: J.D. v. Grand Erie District School Board

Appearances

J. D., Applicant ) No one appearing

The Grand Erie District School Board and ) Richelle M. Pollard, Counsel Sandra Magnani, Respondents )

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 with respect to services, goods and facilities because of disability. This Interim Decision confirms directions and rulings made in a conference call on June 21, 2012 and provides additional directions regarding the in person hearing which is scheduled to take place on September 18, 2012 at the location and time set out in the Notice of Confirmation of Hearing dated March 27, 2012.

Background

2On May 17, 2012, the Tribunal issued a Notice of Conference Call for June 21, 2012, at 10 a.m. to deal with outstanding preliminary issues and the upcoming hearing. The Tribunal had previously received confirmation that this date was available to the applicant. The Notice also set out the consequences of failing to attend the case conference including proceeding in the absence of the party and/or dismissing the Application as abandoned.

3The Notice was sent to the representative for the applicant by regular mail at the address in the Tribunal’s file and has not been returned to the Tribunal.

4The conference call commenced at 10:00 a.m. but only counsel for the respondents was in attendance. I waited 30 minutes for the applicant and/or his representative but neither attended.

5I sought submissions from the respondents who requested that the Application be dismissed as abandoned for various reasons including the applicant’s failure to attend the conference call.

6I determined that the Application would not be dismissed but that directions would be issued to the applicant regarding his obligations should he wish to continue with the Application.

7I proceeded to hear submissions from the respondents and to address the outstanding issues and the upcoming hearing. The conference call concluded at approximately 11:00 a.m.

8At 2:51 p.m., the Registrar received an email from the applicant’s representative stating as follows:

When was this conference call scheduled for because I never did receive anything confirming whether or not it was cheduled [sic] on one of the agreed upon dates? Please advise.

9The email includes the email cover of what appears to be the correspondence from the respondents to the Tribunal on May 17, 2012 confirming that both parties are available for the conference call June 21 or June 22, 2012.

10I issue directions below regarding the applicant’s non-attendance and confirm rulings I had made during the conference call regarding the outstanding issues and the hearing.

The Scope and Timing of the Proposed Evidence

11I sought submissions as to the order and relevance of the proposed evidence to be called in the hearing.

12With respect to Ms. Magnani, the respondent clarified that it did not need to present the proposed evidence described as “historical information” in her witness statement covering the period 2005 until April 2009 (proposed evidence that the applicant appeared to dispute). As a result, the proposed evidence of Ms. Magnani will focus on the events commencing April 2009. Any objections to the remaining proposed evidence will be addressed in the course of the hearing.

13Subject to the directions below, I confirm my ruling that the evidence will be received in the following order: the applicant, Ms. Murdoch and Ms. Magnani. In addition, after the evidence of Ms. Magnani, I will determine whether or not I will hear any further evidence (i.e. the proposed remaining witnesses as identified in the applicant’s email of January 29, 2012). The parties should be prepared to make any further submissions on the relevance of these witnesses at the hearing. In addition, the applicant should take the necessary steps to ensure that the witnesses are available and ready to attend on September 18, 2012 should he seek to call any of the witnesses and should he be permitted to do so.

Request for Disclosure

14The applicant filed a Form 10 seeking disclosure of nine items which were identified by letters A through I. As a result of the Form 11 filed by the respondent the applicant withdrew and/or amended his request and provided additional submissions.

15The following requests remained outstanding (which I identify consistent with the letters used in the parties’ submissions):

A. All notes, memos, reports and other documents containing information relating to the applicant and/or the applicant’s/his partner’s children authored by Melissa Wouters, Loris Stewart and Judy Schipper;

C. Copies of all internal emails between Sandra Magnani and Greg Anderson regarding the applicant;

F. Copies of all threatening letters, notes, complaints or other documents submitted to the respondent by the applicant;

I. Audible time stamped reproductions of all threatening voicemails that the applicant left for the respondent and any notes, memos or other internal documents regarding same.

16With respect to the request for the information described in paragraph A, the respondents state that this relates to the historical period (which it no longer intends to cover in Ms. Magnani’s proposed evidence). Having regard to the foregoing, I confirm the ruling I made that the documentation related to this period is not relevant and the request for production is therefore denied.

17With respect to the remaining items, the respondents state that it has made the relevant inquiries and produced any documentation that exists that falls within the requests. The respondents confirm that no audible reproductions of voicemails exist.

18In the circumstances, I confirm my decision that the applicant’s request for production related to the remaining items is denied.

Summary of Orders

19I order as follows:

a. The applicant’s request for additional production of documents is denied.

b. By June 30, 2012, the applicant shall provide a written explanation as to why he failed to attend the conference call and why he waited until June 21, 2012 to contact the Tribunal regarding the status of the conference call.

c. The applicant will also confirm by June 30, 2012 in writing his contact information and that he intends to attend the hearing on September 18, 2012.

d. At the hearing on September 18, 2012, the witnesses will be heard in the following order: the applicant, Ms. Murdoch and Ms. Magnani.

e. By June 30, 2012, the applicant shall provide written confirmation as to whether he wishes to continue to call Ms. Murdoch as a witness or whether the applicant is prepared to rely on the content of the copies of the affidavits submitted by him as representing her evidence.

f. By July 7, 2012, the respondent shall advise in writing whether they object or consent to the applicant’s position regarding Ms. Murdoch’s evidence and whether they seek an opportunity to cross-examine Ms. Murdoch should her affidavit be admitted as her evidence.

g. By July 7, 2012, the applicant shall provide a separate amended witness statement for each additional witness he wishes to call from the list previously provided if permitted by the Tribunal (consistent with the previous directions set out in paragraph 7 d. in 2012 HRTO 83), along with a signed and dated statement from each witness indicating that they have reviewed their witness statement and that the statement is true. If for any reason the applicant is unable to provide a signed and dated statement from any of the proposed additional witnesses, the applicant shall provide written submissions detailing the reasons for his inability to provide such a statement by July 7, 2012.

h. By July 14, 2012, the respondent may provide any response to the applicant’s submissions that may be provided pursuant to g. above.

i. The applicant shall take the necessary steps to ensure that his witnesses (including any additional witnesses referenced in paragraph g. above) are available and ready to attend on September 18, 2012.

j. On an interim basis, I have anonymized the style of cause. The applicant and respondents should be prepared to make submissions at the outset of the hearing on September 18, 2012 on whether Rule 3.11.1 has application in this proceeding such that initials should be used to identify participants in the proceeding if necessary to protect the identity of children.

20Should the applicant fail to confirm in writing that he intends to attend the hearing on September 18, 2012 the Application may be dismissed as abandoned.