Brouillette v. 674725 Ontario Ltd., 2012 HRTO 1891

Human Rights Tribunal of Ontario

B E T W E E N:

Josee Brouillette

Applicant

-and-

674725 Ontario Ltd. operating as Northern Lights Canada

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 4, 2012

Citation: 2012 HRTO 1891

Indexed as: Brouillette v. 674725 Ontario Ltd.

WRITTEN SUBMISSIONS

674725 Ontario Ltd. operating as Northern Lights Canada, Respondent

Gita Anand, Counsel

1This Interim Decision addresses a Request for an Order During Proceedings in which the respondent seeks particulars regarding the expected evidence of some of the applicant’s witnesses. The hearing of this matter is scheduled for October 17, 18 and 19, 2012.

The Request

2The respondent filed a Request for an Order During Proceedings on September 20, 2012 (the “Request”), seeking particulars regarding the expected evidence of some of the applicant’s witnesses. By Case Assessment Direction dated September 26, 2012, the Tribunal abridged the time for responding to the request and directed the applicant to file and deliver her response to the Request by October 1, 2012. The applicant has not responded to the Request as of the date of this Interim Decision.

3In the Request, the respondent noted that the applicant provided the respondent with summaries of the expected evidence of several witnesses by letter dated August 31, 2012. The respondent submits that the summaries regarding the anticipated evidence of the applicant and three of her other witnesses (Carrie Steeves, Dr. Jayasuriya and Dr. McBride) are deficient. The respondent submits that the summaries provide only general statements that do not allow either the respondent or Tribunal to fully understand the expected evidence of these witnesses regarding the issues remaining in dispute. The respondent submits that without detailed summaries of the expected evidence of the witnesses in question, it will be prejudiced in its ability to defend itself.

Decision

4In an earlier Interim Decision in this matter, 2012 HRTO 159, the Tribunal made the following order:

The Application is dismissed with the exception of the applicant’s allegations that the respondent failed in its duty to accommodate the applicant regarding her hip flexor injury, her request for an ergonomic assessment for her home workspace, the decision to require her to attend the AGM and the denial of her request to work from home after returning from the AGM.

Accordingly, the hearing of this matter will be limited to these four issues.

5In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal described its expectations regarding witness statements, 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.

6The summary of the applicant’s expected evidence simply states “Ms. Brouillette will speak to all matters detailed within her application”. However, the Application provides detailed allegations regarding the remaining issues to be decided in this matter, with the exception of the decision to require the applicant to attend the Annual General Meeting (“AGM”). In my view, the Application provides sufficient detail regarding her allegations regarding the accommodation of (or the failure to accommodate) her hip flexor injury, her allegations regarding the request for an ergonomic assessment for her home workspace and the denial of her request to work from home after returning from the AGM to allow the respondent to prepare for the hearing. The Applicant refers to the requirement to attend the AGM only in passing and does not provide sufficient detail to allow the respondent to prepare its case on this point.

7The witness statements regarding Carrie Steeves, Dr. Jayasuriya and Dr. McBride provide only a description of the general topics about which each witness is expected to testify and do not meet the requirements of the Tribunal’s jurisprudence.

Order

8With seven days of the date of this Interim Decision, the applicant is directed to file with the Tribunal and deliver to the respondent particulars of her allegations regarding the requirement that she attend the AGM and particularized witness statements regarding the expected testimony of Carrie Steeves, Dr. Jayasuriya and Dr. McBride setting out their expected evidence in detail.