Human Rights Tribunal of Ontario
B E T W E E N:
Elsa de Souza
Applicant
-and-
Roots Canada Limited, Don Green and
Michael Budman
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: de Souza v. Roots Canada Limited
WRITTEN SUBMISSIONS
Elsa de Souza, Applicant
Robert Cishecki, Representative
Roots Canada Limited, Don Green and Michael Budman, Respondents
Jonathan Dye, Counsel
1This is an Application filed on June 28, 2010 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 employment because of disability. The applicant alleges that the respondent terminated her employment because of her disability. The respondents states that the applicant's position was eliminated as part of a restructuring exercise.
2On June 7, 2012, the applicant filed a Request for an Order During Proceedings (the "Request") seeking particulars and disclosure of documents, as follows:
- Disclosure of "Document # 29" that was named in the respondents' list of arguably relevant documents, but no copy was provided;
- To define what the respondents mean by the applicant's "skill set", as the term is used in its Response;
- To define what the respondents means by the "skill set" of the three employees that worked in the Baby Department for whom the respondent was able to find alternate positions, as the term is used in its Response;
- To provide particulars of the steps the respondents took that led to the conclusion that there was no available position to which it could assign the applicant; to provide particulars of any policy or procedure that informed the respondent's conclusion that it could not reassign the applicant and to disclose any documents associated with the conclusion that it could not reassign the applicant;
- To provide particulars of the steps the respondents took that led to identifying alternate positions for three other employees in the Baby Department; to provide particulars of any policy or procedure that the respondents applied in reassigning these three employees and to disclose any documents associated with identifying alternative opportunities for these employees;
- To disclose any documents on which the financial review that led to the closure of the Baby Department was based;
- To provide particulars regarding the head office positions the respondents state it eliminated since 2009 and any documentation regarding the circumstances of the elimination of each position.
3The applicant submits that additional facts and documents would assist all parties, including the Tribunal, to better understand the respondents' position regarding the Application. The applicant submits that the Response is too vague and open ended to permit the applicant and the Tribunal to understand the circumstances surrounding the decision to terminate the applicant's employment. Accordingly, the applicant requires the requested information, which it submits will assist in narrowing issues and shortening the hearing.
4The respondent filed a Response to a Request for an Order on June 12, 2012 opposing the Request. The respondent submits that the information provided in its Response was proper and that the applicant actually seeks the detailed evidence the respondents intend to provide at the hearing. The respondents submit that the Request is improper in scope and ignores the disclosure requirements under the Tribunal's Rules of Procedure.
Analysis and Decision
5Rule 16.1 states as follows:
16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.
The applicant states that Document #29 was listed in the respondents' arguably relevant documents. Accordingly, the respondents should have provided a copy of the document to the applicant, pursuant to Rule 16.1.
6The respondents' Response is not in my view lacking in particulars regarding why the respondents found it necessary to terminate the applicant's employment, including why they could not find an alternative position within the company for the applicant. I agree with the respondents that the applicant seeks the evidence the respondents will adduce to support their position. Rules 16.3, 17.1 and 17.2 state as follows:
16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:
a) a list of documents upon which the party intends to rely; and
b) a copy of each document contained on the list.
17.1 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.
17.2 The witness list must include a brief statement summarizing each witness' expected evidence.
The Tribunal explained its expectations regarding witness statements in C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, as follows, at paragraph 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal's process. It ensures that each party fully understands the other side's case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.
7Consequently, the Tribunal's Rules and jurisprudence require the parties to provide detailed descriptions of the evidence they intend to adduce in their witness statements. The Rules also require the parties to disclose any documents they intend to rely upon at the hearing. The Tribunal set July 6, 2012 as the deadline for this pre-hearing disclosure in the Notice of Confirmation of Rescheduled Hearing. Accordingly, the applicant's Request for particulars and disclosure is premature.
Order
8The Tribunal orders as follows:
a. The respondents must provide a copy of Document #29 on their list of arguably relevant documents; and,
b. The remainder of the Request is dismissed.
Dated at Toronto, this 25th day of June, 2012.
Signed by
Douglas Sanderson
Vice-chair