Khan v. IBM Canada Ltd., 2012 HRTO 1914

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kasim Khan

Applicant

-and-

IBM Canada Ltd. and Catherine Chalmers

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: October 9, 2012

Citation: 2012 HRTO 1914

Indexed as: Khan v. IBM Canada Ltd.

WRITTEN SUBMISSIONS

IBM Canada Ltd. and Catherine Chalmers, Respondents

Lia Bruschetta and Valerie Dyer, 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 disability. The purpose of this Interim Decision is to address the applicant’s failure to comply with his pre-hearing disclosure obligations pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure (the “Rules”). The hearing of this matter has been scheduled on November 19, 20 and 21, 2012.

2The applicant alleges that he disclosed that he expected to be diagnosed with a chronic neurological disorder and may require a medical leave of absence. The applicant alleges that the respondents refused to consider such an accommodation and withheld a promotion because of his disability. The applicant alleged that he resigned his employment in the face of this discriminatory conduct. The respondents’ position is that the applicant was permitted any time off he needed for doctors’ appointments and was granted extended vacation time. The respondents’ state, however, that the applicant never disclosed any disability and he voluntarily resigned his employment to pursue another opportunity.

3The Notice of Confirmation of Hearing summarized the requirements of Rule 16 and 17 as follows:

By May 05, 2012 you must deliver to every other party:

• a list of all arguably relevant documents in the party’s possession. Where privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and

• a copy of each document contained on the list, excluding any documents for which privilege is claimed.

File a Statement of Delivery (Form 23) with the HRTO confirming delivery of the list and documents on the other parties. You do not need to file copies of the documents with the HRTO at this time.

Unless otherwise directed by the HRTO, not later than September 14, 2012 you must deliver to every other party and file with the HRTO:

• a list of all documents you intend to rely on at the hearing;

• a copy of each document on that list for the HRTO;

• a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;

• a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;

• a statement summarizing the expected evidence of each witness;

• where you intend to rely on the evidence of a proposed expert witness, a copy of the expert’s written report or a full summary of the expert’s proposed evidence and the expert’s curriculum vitae;

• the Statement of Delivery of the Rule 16.2 list and documents on the other parties.

4As of the date of this Interim Decision, the applicant has not complied with any of his pre-hearing disclosure requirements. On August 21, 2012, the respondents filed a Request for an Order During Proceedings (the “Request”) to seek an order requiring the applicant to disclose certain documents that they consider arguably relevant. These documents include travel documents, workplace communications, job search documents, income tax information and medical documentation regarding his condition. The respondents submitted that they required disclosure of these documents to prepare for hearing. The applicant did not respond to the Request and the time for doing so has passed.

5On September 25, 2012, the respondents filed a letter in which they reiterated that they had received no communication, response or documents from the applicant. The respondent submitted that they could not prepare witness statements or prepare properly for the hearing without the documents and witness statements the applicant is required to file and deliver pursuant to the Rules. The respondents requested that the Tribunal should vacate the October 5, 2012 disclosure and filing date and should set a new date for compliance with Rules 16.2, 16.3 and 17. The respondents further requested that the hearing be adjourned pending the outcome of the request and for the Tribunal to convene a Case Conference.

DECISION

6In C.D. v. Wal-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. 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.

DIRECTION

7In my view, the documents sought by the respondents in the Request are arguably relevant to the issues involved in this Application, assuming such documents exist. The applicant is directed to immediately file the materials required under Rules 16 and 17, including any documents described in the Request that he may have, and if the applicant has not done so within 7 days of the date of this Interim Decision, the Application may be dismissed as abandoned.

8The respondents have complied with their obligations under Rules 16 and 17, notwithstanding the applicant’s failure, to date, to disclose arguably relevant documents in his possession. The respondents may file an updated witness list and updated witness statements within 14 days of the date the applicant files and delivers the materials required pursuant to Rules 16 and 17, as described in paragraph 7, above.

9At this stage in the proceeding, the Tribunal grants adjournments only in extraordinary circumstances. See the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments. The circumstances arising in this matter are not in my view extraordinary and adjournment of the hearing is not warranted. Following this Interim Decision, there do not appear to be any outstanding procedural issues; therefore, a Case Management Conference Call is also unnecessary.

ORDER:

10The Tribunal orders as follows:

a. The applicant shall comply with Rules 16 and 17 of the Rules, as described in paragraph 7, failing which the Tribunal may dismiss the Application as abandoned;

b. The respondents may file and deliver an updated witness list and updated witness statements within 14 days of the date on which the applicant complies with Rules 16 and 17, as described above;

c. The respondents’ request to adjourn the hearing is denied; and,

d. The request for a Case Conference is denied.