Tai Q. Tran v. Welcome Pharmacy (Queen) Ltd. operating as Parkdale Guardian Drugs, Angelina Lam and Andrew Ng, 2012 HRTO 398

Human Rights Tribunal of Ontario

B E T W E E N:

Tai Q. Tran Applicant

-and-

Welcome Pharmacy (Queen) Ltd. operating as Parkdale Guardian Drugs, Angelina Lam and Andrew Ng Respondents

Interim Decision

Adjudicator: Douglas Sanderson Date: February 27, 2012 Citation: 2012 HRTO 398 Indexed as: Tran v. Welcome Pharmacy (Queen) Ltd

1This Interim Decision addresses two Requests for Orders during Proceeding and alerts the respondents to the fact that they have failed to comply with the obligations under Rules 16 and 17 to deliver to every other party and file with the Tribunal a witness list, witness statements, and copies of documents the party intends to rely upon no later than 45 days prior to the hearing. The hearing in this matter is scheduled for March 5, 2012.

2On February 15, 2012, the applicant filed a Request for Order During Proceeding. In the Request, the applicant noted that the respondents had not filed witness statements for two expected witnesses and had not filed and delivered the documents upon which they intend to rely at hearing. The applicant noted that the respondents also had not disclosed documents related to a complaint before the Ontario College of Pharmacists, No. 2007257. The applicant requested an order from the Tribunal directing the respondents to file and deliver witness statements for each of its witnesses and to file and deliver certain documents related to the complaint to the Ontario College of Pharmacists. On February 16, 2012, the individual respondent, Mr. Ng, filed Request for Order during Proceeding also seeking production of documents. Mr. Ng noted on the form “Missing Complaint No. 2007257 Ontario College of Pharmacists Documents as stated on Appendix “A” Form 10”. Although Mr. Ng used the wrong form to reply to the applicant’s response, he seems to indicate that the respondents do not have the documents regarding the complaint to the College of Pharmacists in their possession.

3At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute. The applicant did not state, why the documents it seeks regarding the complaint to the College of Pharmacists are arguably relevant to any factual issue in the dispute, or how it will suffer prejudice without access to these documents. Consequently, there is no basis at this point to conclude that the documents the applicant seeks are arguably relevant and the request is denied.

4The applicant is correct that the respondents have not complied with their pre-hearing disclosure obligations. The Notice of Confirmation of Hearing summarized the requirements as follows:

Unless otherwise directed by the HRTO, not later than January 20, 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.

5In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, at para. 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

6The respondents are directed to immediately file the materials required under Rules 16 and 17, and if the respondent has not done so within 7 days of the date of this Case Assessment Direction, the Tribunal may take any or all of the steps in Rule 5, including not permitting the respondent to call any witnesses at the hearing.