Cheryl McNeil v. Teston Pipelines Limited and Domenic Alonzi, 2012 HRTO 1653

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl McNeil

Applicant

-and-

Teston Pipelines Limited and Domenic Alonzi

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: August 30, 2012 Citation: 2012 HRTO 1653 Indexed as: McNeil v. Teston Pipelines Limited

WRITTEN SUBMISSIONS

Cheryl McNeil, Applicant Josephine L. Comegna, Counsel

Teston Pipeline Limited, Respondent Michael Handler, Counsel

Domenic Alonzi, Respondent Enio Zeppieri, Counsel

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 employment because of sex, sexual solicitation or advances, and disability.

2This Interim Decision addresses a Request for an Order During Proceedings (the "Request") filed by the applicant on August 17, 2012. The applicant seeks the following:

1. An Interim Order requiring the organizational respondent to transcribe the handwritten notes of Robert Kaye, which were disclosed in the organizational respondent's Book of Arguably Relevant Documents, at the organizational respondent's cost, or, in the alternative, at the equally shared cost of each party or, in the further alternative, the costs should be assigned as the Tribunal sees fit;
2. An interim order granting the applicant an extension of time to Monday, September 17, 2012 to file her Disclosure Documents pursuant to Rule 16 of the Tribunal's Rules of Procedure (the "Rules");
3. An interim order granting the applicant an extension of time to Monday, September 17, 2012 to file her witness list and witness statements, pursuant to Rule 17;
4. An Interim Order requiring the organization respondent to produce copies of all case law, tribunal decisions, jurisprudence and/or other materials relating to sexual harassment that Mr. Kaye referred to while conducting the investigation of the applicant's allegations.

3The applicant submitted that Mr. Kaye, who is an employee of the organizational respondent, took approximately 40 pages of notes during the investigation of the applicant's allegations. The applicant submits that the notes are illegible and that it would be unfair for the organizational respondent to be able to rely on documents that are illegible to the other parties and the Tribunal. The applicant submitted that if the organizational respondent seeks to rely on these documents, then it should bear the cost of transcribing the notes.

4The applicant submitted that she intends to call her family physician as an expert witness, but requires additional time to secure, file and serve a copy of her doctor’s curriculum vitae. She anticipates she will be able to do so by September 10, 2012.

5The applicant also submitted that she intends to produce all of her relevant medical records and has made the appropriate inquiries of Urgent Care Centre and Pine Valley Medical Centre, which have the files, but has met with delays and it appears uncertain when she may receive the documents. The applicant therefore requests an extension to September 17, 2012 to file these documents.

6Similarly, the applicant submitted that she has made efforts to secure documents from Rogers Communications and to secure a written transcript of the Employment Insurance Appeal in which the applicant apparently participated on January 6, 2011. Notwithstanding these efforts, the applicant has yet to receive these documents and requests an extension to September 17, 2012 to file them.

7The applicant submits that any jurisprudence or other material to which Mr. Kaye referred in the investigation of the applicant's complaint are relevant because they "go to the root of the issue" against the organizational respondent and illustrate how the organizational respondent conducted itself after the applicant complained of sexual harassment.

8On August 28, 2012, the applicant filed a letter to the Tribunal and respondents stating, amongst other things, that she has received the medical file from Pine Valley Medical and would produce it once she received a more legible copy.

9The organizational respondent filed a timely Response to a Request for Order in which it opposes all aspects of the Request. The organizational respondent submitted that Mr. Kaye's notes were disclosed as arguably relevant documents on February 17, 2012, as required by the Tribunal’s Rules. The respondent notes that the applicant waited for more than 6 months to make this Request and the respondent will be prejudiced by this delay. The respondent submits that transcription of the documents is unnecessary because the documents demonstrate the dates and times of the investigation and the comprehensiveness of the investigation, but are not intended to demonstrate the truth of their contents. The respondent submitted that Mr. Kaye has been identified as a witness and can be clarify his notes, if necessary, during his testimony. Further, the organizational respondent has provided a summary of his expected evidence and a copy of his report that followed his investigation. Accordingly, the organizational respondent submitted that the applicant will suffer no prejudice if the notes are not transcribed. The organizational respondent notes that it agreed to have the notes in question transcribed at the applicant's cost, but the applicant refused. The respondent submitted that in the future respondents may fail to produce arguably relevant documents for fear of having to incur the cost of transcribing them.

10The organizational respondent submitted that delays in the applicant's pre-hearing disclosure will restrict the time available to it to prepare its case prior to the hearing. The organizational respondent submitted that the applicant provided no adequate explanation for the delay in producing her medical records, the records from Rogers Communication and the transcript of the Employment Insurance Appeal. The organizational respondent submitted that granting the Request would inevitably result in the postponement of the hearing and would cause further delay and expense.

11The individual respondent also filed a timely Response to a Request for Order and submitted that Mr. Kaye’s notes are illegible and should be transcribed and the party seeking to rely upon them, i.e., the organizational respondent, should bear the cost of transcription.

12The individual respondent did not oppose the applicant's extension requests, provided that he has "an opportunity to respond" to the documents. The individual respondent also submitted that should the documents be delivered after the extended timeline, then an adjournment would be required.

Analysis and Decision

13The Tribunal may lengthen or shorten any time limit set out in the Tribunal’s Rules of Procedure, pursuant to Rule 1.7 of the Rules.

14In C.D. v. Wai-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, 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.

15In my view, the purpose served by the pre-hearing disclosure of documents, particularly the documents upon which a party intends to rely, would be defeated if a disclosed document is illegible to the other parties. The organizational respondent states that Mr. Kaye's notes were included in its disclosure of arguably relevant document in February 2012. However, the organizational respondent also included these documents in a book of documents entitled “ARGUABLY RELEVANT DOCUMENTS OF THE RESPONDENT, TESTON PIPELINES LIMITED (Rule 16.1(a))" filed on August 24, 2012. The parties were required to file the documents upon which they intend to rely at the hearing (Rule 16.3) on August 27, 2012. Therefore, despite the title and given the organizational respondent's submissions that the notes are evidence of its diligent investigation, it seems clear that the organizational respondent intends to rely on these notes. The notes are difficult to decipher and the other parties should not have to wait until Mr. Kaye testifies to clarify the contents of this evidence.

16On August 28, 2012, the applicant filed a "BOOK OF RELEVANT DOCUMENTS AND/OR MATERIALS OF THE APPLICANT (pursuant to Rule 16.1(a)). Notwithstanding this title, it appears that these are the documents the applicant intends rely upon at the hearing, pursuant to Rule 16.3. Also on August 28, 2012, the applicant filed a witness list and a brief summary of the evidence expected from each witness. Accordingly, the applicant has produced the bulk of the documents upon which she intends to rely. Only the disclosure of the documents for which the applicant sought deadline extensions remains outstanding and it appears that disclosure of some of the medical information is imminent. I am satisfied that the applicant made reasonable efforts to obtain her medical records, her account information from Rogers (a significant amount of which has already been disclosed) and a transcript of the Employment Insurance Appeal. In my view, extending the timelines to file and deliver these documents as requested will not result in prejudice to the respondents or require an adjournment.

17There is nothing in any of the materials filed by the organizational respondent that indicates that Mr. Kaye referred to any jurisprudence or other material regarding sexual harassment when he conducted the investigation and prepared his report. The applicant has provided no other basis to conclude that he referred to any such materials. Consequently, the applicant’s request to produce such jurisprudence and other material is speculative.

Order

18The Tribunal orders as follows:

1. Within 14 days of the date of this interim decision, the organizational respondent shall transcribe the handwritten notes of Robert Kaye, as found at Tabs 1, 3, 4, 6, 7, 8, 10 and 11 of its Book of Arguably Relevant Documents into a legible form and shall file a copy of the transcribed notes with the Tribunal and deliver a copy to each of the other parties. Any cost associated with transcribing the notes shall be borne by the organizational respondent;
2. The applicant's request to extend the deadline to file her physician's curriculum vitae is granted. The applicant shall file her physician’s curriculum vitae with the Tribunal and deliver a copy to each of the other parties on or before September 10, 2012;
3. The applicant's request to extend the deadline to file her medical records from Pine Valley Medical Centre and Urgent Care Centre, account information from Rogers Communications and a transcript of the Employment Insurance Appeal on January 6, 2011 is granted. The applicant shall file these documents with the Tribunal and deliver a copy to each of the other parties on or before September 17, 2012; and,
4. The applicant’s request for production of jurisprudence or other material regarding sexual harassment to which Mr. Kaye referred during his investigation is denied.