Letterio v. Dr. Bernstein Diet & Health Clinics, 2012 HRTO 635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Letterio

Applicant

-and-

Dr. Bernstein Diet & Health Clinics

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: March 27, 2012

Citation: 2012 HRTO 635

Indexed as: Letterio v. Dr. Bernstein Diet & Health Clinics

1The applicant filed an Application 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 sex (pregnancy).

2This Application has been scheduled for a hearing to begin on May 1, 2012.

3Pursuant to the Tribunal’s Rules of Procedure requiring the parties to exchange all arguably relevant documents prior to the hearing, the respondent delivered to the applicant, copying the Tribunal, its arguably relevant documents on December 9, 2011, and December 19, 2011.

4The applicant filed a Request for an Order During Proceedings on February 24, 2012 for the production of documents. Her brief explanation for making the Request states, “I have requested documents in the past and feel that I have not received all of them as such I request my complete copy of my employee file.” [original grammar and punctuation]

5Counsel for the respondent replied to the Request on March 9, 2012, stating:

As solicitors of the Respondent, we have had an opportunity to receive and review the Applicant’s employee file and produce the following arguably relevant documents: … [a list of documents, some of which had been previously provided to the applicant, approximately two pages long].

We did not identify any other arguably relevant documents in the Applicant’s employee file. Given this fact, our client’s production of the aforementioned documents, and the Applicant’s failure to identify particular documents that have allegedly been withheld, there is no basis for the Tribunal to order the production of the Applicant’s employee file. On this basis, our client opposes the relief sought.

6On March 14, 2012, the applicant sent a letter to the Tribunal to state that she does not trust the respondent and its legal counsel to accurately identify what documents in her employee file are arguably relevant, and that she continues to seek an order for her “full personal file”. However, she does not identify particular documents that have not been disclosed.

7The applicant also requested an adjournment of the hearing on the basis that she believes disclosure has not been fulsome so that she cannot adequately prepare.

8The respondent replied on March 14, 2012, and maintains its position that all arguably relevant documents have been shared with the applicant. The respondent does not object to the applicant’s request to adjourn.

9The respondent filed on time (by March 17, 2012) a witness list, witness statements, and copies of documents upon which it intends to rely at the hearing pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure. The applicant requested an extension for filing her materials, also due on March 17, 2012, on the basis that the disclosure she did receive from the respondent revealed “claims” against her “that had never been released prior.”

Request for Employee File

10At the pre-hearing stage, the applicant is entitled to receive arguably relevant documents pursuant to the Tribunal’s Rules of Procedure, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. An entire employee file for the applicant, however, is not necessarily “arguably relevant”, and the Tribunal is unlikely to order that the entire file be produced unless each of the documents in it may prove or disprove a fact in issue in the dispute. See: Le Blanc v. Toronto Transit Commission, 2011 HRTO 1625. The disclosure process is not to be used by the parties to embark upon a fishing expedition.

11In this case, counsel for the respondent has confirmed that he has reviewed his client’s documents in the applicant’s employee file, and found nothing arguably relevant other than those documents already disclosed to the applicant. While the applicant appears not to believe counsel for the respondent, and has suspicions about the possible existence of other documents, her suspicion alone is not a sufficient basis for a Tribunal order. See D’Agostino v. Appleby College, 2011 HRTO 297.

12In the absence of any description of a document in her file that has not been disclosed, I refuse the applicant’s request for the disclosure of her entire employee file.

Request for Adjournment

13The Tribunal’s “Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments” reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above… the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent…

14The applicant’s only reason for the adjournment is her belief that she has not received full disclosure and therefore needs more time to prepare for the hearing. Requiring more time to prepare for a hearing is unlikely to result in an adjournment. See for example Madieros v. Cambridge Canvas Centre, 2010 HRTO 2372, and Mathurin v. Law Society of Upper Canada, 2011 HRTO 1045. In the circumstances, where I have decided that no order for further disclosure is justified and the applicant is therefore not needing to wait for any further documents from the respondent to which she must reply, and where the applicant had received all arguably relevant documents by March 9, 2012, well in advance of the hearing, the adjournment request is denied.

Extension for Applicant to file documents

15The applicant has 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 that she intends to rely upon no later than 45 days prior to the hearing (March 17, 2012). In reviewing the disclosure of documents provided by the respondent, I do not agree with the applicant that there are “claims” by the respondent which would justify an extension for the filing of her documents and witness statements, and I see no reason to grant the applicant more time beyond the due date for filing them. The applicant is directed to immediately file the materials required under Rules 16 and 17.

16I am seized.