Faye Hendy v. Nartech Metal Products Ltd., 2012 HRTO 379

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Faye Hendy

Applicant

• and-

Nartech Metal Products Ltd.

Respondent

INTERIM decision

Adjudicator: Douglas Sanderson

Date: February 23, 2012

Citation: 2012 HRTO 379

Indexed as: Hendy v. Nartech Metal Products Ltd.

APPEARANCES wRITTEN SUBMISSIONS

Faye Hendy, Applicant ) Chris Surowiak, Representative

Nartech Metal Products Ltd., Respondent ) Jeanine Watt, 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 in employment on the basis of disability.

2The Tribunal sent a Notice of Confirmation of Hearing (the “Notice”), dated November 30, 2011, wherein the Tribunal informed the parties that the hearing of this matter would occur on June, 4, 5 and 6, 2012. The Notice also set deadlines regarding pre-hearing disclosure. The parties were to deliver to each other all arguably relevant documents in their possession by December 21, 2011 (Rule 16.1 of the Tribunal’s Rules of Procedure) and are to deliver to each other and file with the Tribunal the documents they intend to rely upon, witness lists and witness statements by April 20, 2012 (Rules 16.2, 16.3, 17.1 and 17.2).

3On January 31, 2012, the applicant filed a Request for Order during Proceeding requesting an extension of the deadline for delivery of arguably relevant documents. It would seem, based on the material before me, that the applicant did not meet the deadline for disclosing arguably relevant documents, but has purported to disclose arguably relevant documents on several occasions since then. The applicant requests that the Tribunal permit it to rely on three documents that she states have in any event been disclosed to the respondent on January 25, 2011, apparently along with the applicant’s Reply (a letter dated June 15, 2010 from the University Health Network, a letter from the respondent dated June 23, 2010 and the applicant’s record of employment). The applicant also seeks extension of the deadline for disclosing arguably relevant documents until April 2, 2012 in order to submit “other” documents.

4The respondent opposes the Request on the basis that the applicant has provided no explanation for her failure to comply with Rule 16.1. Further, the respondent put the applicant on notice that it would vigorously object to the applicant’s attempt to use any documents disclosed after the deadline for disclosing arguably relevant documents.

Decision

5The respondent is correct that the applicant has neither complied with Rule 16.1 nor provided an explanation for her non compliance. The respondent, however, relies on a strict interpretation of the Tribunal’s Rules of Procedure and does not suggest that it will suffer prejudice if the applicant is permitted to rely on documents filed after the Rule 16.1 deadline. Neither does the respondent contradict the applicant’s assertion that she previously disclosed the three documents identified in the Request. The hearing in this matter is not scheduled to commence for over three months and the deadline for disclosure of the documents the parties will actually rely upon is not until April 20, 2012. In my view, the respondent will not suffer prejudice if the applicant is permitted to rely on the documents it has disclosed thus far. In these circumstances, it is appropriate to exercise the Tribunal’s authority under Rule 5.2 to vary the deadline for the applicant to disclose arguably relevant documents.

6I am not, however, prepared to extend the Rule 16.1 deadline to April 2, 2012. The applicant provided no explanation for why she needs such a lengthy extension. I also note the applicant has continued to disclose documents to the respondent in a piecemeal manner in January and February 2012, which is also inconsistent with the requirements of Rule 16.1. The applicant is reminded of the requirements of Rule 16.1, which states:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

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

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

(Emphasis added)

I am satisfied that extending the deadline for disclosure under Rule 16.1 until February 29, 2012 is appropriate. Should the parties wish to deliver further arguably relevant documents after February 29, 2012, they must seek the Tribunal’s permission by submitting a Request for Order during Proceeding.

Order

7The deadline for compliance with Rule 16.1 is extended to February 29, 2012. The parties must seek the Tribunal’s permission to deliver arguably relevant documents after that date.