Human Rights Tribunal of Ontario
BETWEEN:
Samuel Sacco Applicant
-and-
TRW Canada Ltd. Respondent
INTERIM DECISION
Adjudicator: Eric Whist Date: October 23, 2012 Citation: 2012 HRTO 2010 Indexed As: Sacco v. TRW Canada Ltd.
WRITTEN SUBMISSIONS
TRW Canada Ltd., Respondent Paul Young, Counsel
1This Interim Decision addresses the respondent’s Request for an Order During Proceedings (RFOP) dated October 19, 2012.
2The RFOP states that the applicant has not delivered a witness list and/or witness statements in accordance with the Tribunal’s Rules. The RFOP requests that the Tribunal make an order prohibiting the Applicant from presenting evidence given his failure to provide his witness information on a timely basis. The respondent further requests that the three preliminary objections that it has raised in its Response (paragraphs 3 through 11 of Schedule “A”) be dealt with as preliminary issues at the hearing scheduled for November 5 and 6, 2012.
BACKGROUND
3Rules 16 and 17 of the Tribunal’s Rules of Procedure require that parties disclose to each other and file with the Tribunal copies of the documents that they intend to rely on at a hearing as well as a list of their witnesses and their witness statements 45 days before the date of the hearing. In this case the deadline for submitting these materials was September 21, 2012.
4On August 30, 2012 the applicant filed a copy of a document he intends to rely on at the hearing. He provided no list of witnesses or witness statements. On September 20, 2012 the respondent filed the documents it intends to rely on at the hearing as well as a list of its intended witnesses and statements summarizing their anticipated evidence.
DECISION
5As the Tribunal states in C.D. v. Wal-Mart Canada, 2010 HRTO 426 it is important that parties exchange documents and witness information on a timely basis before the commencement of a hearing. It states:
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. (para 7).
6The applicant has met his obligation to disclosed documents as required by the Tribunal’s rules. He has not filed a list of witnesses or witness statements. However, I am not prepared, at this time, to make an order that the applicant can call no evidence. I am of the view that what is appropriate is to direct the applicant to immediately provide a list of witnesses and witness statements to the respondent and the Tribunal and to do so no later than Monday, October 29, 2012. The applicant must provide a witness statement for himself as well. The applicant should note that the respondent has raised a concern that the applicant has not provided particulars in his Application (e.g. in his response to Section 8 “What Happened?) that adequately outline his allegations of discrimination.
7It remains open to the respondent, after receiving the applicant’s witness information, to argue why it is prejudiced by the late disclosure of this information. It can do this either prior to or at the outset of the hearing.
8I am also prepared to consider the respondent’s objections, as stated in its Response, as preliminary issues at the hearing.
ORDER
9The Tribunal therefore makes the following Order:
The applicant will immediately deliver to the respondent a witness list and a detailed summary of the expected evidence (will-says) for each witness. Specific events should be described and, if possible, specific dates should be given. The witness list and the will-say statements for each witness must also be filed with the Tribunal no later than October 29, 2012;
Dated at Toronto, this 23rd day of October, 2012.
“Signed by”
__________________________________
Eric Whist Vice-chair