No v. Harry Rosen Incorporated, 2012 HRTO 1261

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hyan No on behalf of Hae-jo No Applicant

-and-

Harry Rosen Incorporated and Domenic D’Angelo Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: June 26, 2012 Citation: 2012 HRTO 1261 Indexed as: No v. Harry Rosen Incorporated

WRITTEN SUBMISSIONS

Hyan No on behalf of Hae-jo No, Applicant John Nelson, Counsel

Harry Rosen Incorporated and Domenic D’Angelo, Respondents Kate McNeill-Keller, Counsel

1This is an Application filed under section 34(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges discrimination with respect to her brother’s employment because of his disability. On May 1, 2012, the Tribunal issued a Notice of Mediation, setting the date for July 20, 2012. On May 4, 2012, the applicant filed a Request for an Order During Proceedings (Form 10) seeking production of documents from the respondent, namely, her brother’s employee file.

2In the Request, the applicant argues that the information sought is relevant to the issues raised in the Application, and obtaining the information will make the mediation more effective. The applicant relies on a decision of the Tribunal (Renouf v. Georgian Bay General Hospital, 2012 HRTO 1070) that grants a request for disclosure so that the respondent in that case could prepare a Response. The respondent opposes the request, and argues that, unless exceptional circumstances exist, the Tribunal’s practice is to refuse to order early disclosure given that the Tribunal’s Rules of Procedure provide a time frame for production of documents. (See Paterno v. St. Leonard’s Community Services London and Region, 2012 HRTO 1052; McCreight v. Home Hardware Stores Limited, 2011 HRTO 1488; and Grillis v. Proctor and Gamble, 2011 HRTO 2009).

3Under Rule 16, the Tribunal sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case. Only if the matter does not settle at mediation will a Notice of Hearing be issued.

4The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as in Renouf, supra, where a respondent would have been significantly disadvantaged in filing a Response without first receiving certain documents. I find that the belief that mediation will be more effective after the production of the applicant’s brother’s employee file is not an exceptional circumstance to justify granting the applicant’s Request. The respondent may consider disclosing the applicant’s employment file voluntarily, prior to mediation, if such disclosure would facilitate the mediation process.

5Given that the applicant has not identified any exceptional circumstance to justify production at this stage, the applicant’s request for production is denied as premature.

6I am not seized.