Cunningham v. Showa Canada Inc., 2012 HRTO 698

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James Cunningham

Applicant

-and-

Showa Canda Inc., Brenda McKee and Esther Allen

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 5, 2012

Citation: 2012 HRTO 698

Indexed as: Cunningham v. Showa Canada Inc.

WRITTEN SUBMISSIONS

James Cunningham, Applicant ) Self-represented

Showa Canada Inc., Brenda McKee ) Dan Black, Counsel and Esther Allen, Respondents )

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on June 6, 2011.

APPLICANT’S ALLEGATIONS

2The applicant alleges that he experienced a back injury at work in 2007, at which time he was placed on modified duties sitting at a desk sorting parts. The applicant experienced a recurrence of the injury in 2008, following which he underwent sugery in 2009. The applicant alleges that upon his return to work he resumed similar modified duties sitting at a desk inserting parts. The applicant contends that he was not properly accommodated in that he was expected to be seated on a hard plastic chair for extended periods of time and this aggravated his condition.

3The applicant alleges he raised his accommodation concerns with the personal respondents to no avail. The applicant claims that the Workplace Safety and Insurance Board (“WSIB”) previously had determined that the respondent employer did not properly accommodate his disability and he believes this supports his allegation that the respondent employer has again failed to accommodate him. The applicant alleges that his employment was terminated in June 2010 because the respondents perceived him to be high risk and liability as an injured worker.

RESPONDENTS’ REQUEST FOR WSIB FILE

4On December 22, 2011, the respondents filed a Request for an Order During Proceedings (“Request”) asking the Tribunal to 1.) require the applicant to obtain and disclose his complete WSIB file, 2.) require the applicant to provide his consent to allow the respondents to put his WSIB documents before the Tribunal and 3.) grant an extension of time to file a Response (Form 2) after receipt of the WSIB file.

5The respondents submit that in order to respond adequately to the applicant’s allegations, they require a complete copy of the applicant’s WSIB file. The respondents point out that the applicant submitted only some WSIB documents along with his Application. The respondents allege that they cannot meaningfully respond to all of the allegations contained in the Application without first having reviewed the applicant’s whole WSIB file. The respondents submit that they may need to rely on materials from the WSIB to support their position that they acted properly in accommodating the applicant. The respondents request additional time to file their Response (Form 2) once they have had an opportunity to access and review the applicant’s full WSIB file.

6Although the applicant did not file with the Tribunal a response to the respondents’ request for production, the respondents’ materials included correspondence exchanged by the parties on this issue. The applicant advised the respondents that, while he does not oppose some disclosure, he is concerned by the fact that they seek his complete WSIB file, which may not be necessary nor appropriate disclosure. The applicant indicates that he wishes for the respondents to identify specifically what documents are required. The applicant consents to the Tribunal granting an order for production of only those documents which pertain to the Application.

ANALYSIS & DECISION

7The respondents seek an order for production and disclosure prior to filing their Form 2 Response. The respondents contend that they require access to the applicant’s entire WSIB claims file in order to meaningfully respond to the alleged failure to accommodate. The respondents argue the applicant’s position that they first identify what documents they seek is unreasonable. The respondents argue that since they do not know what documents exist they have “…no idea what documents may be relevant to the Applicant’s allegations in the Applicant’s Application.”

8The determinative question at the heart of the respondents’ request is whether disclosure is necessary for the respondents to fulfill their obligation to file a Response. The underlying issue is whether or not the Application is so deficient of information about the alleged facts and legal issues that the respondents are unable to file a Response.

9Pursuant to Rule 16 of the Tribunal’s Rules of Procedure, all arguably relevant documents in the possession of a party must be disclosed to other parties no later than 21 days after the Tribunal sends a Confirmation of Hearing. A Confirmation of Hearing has yet to be issued because this matter is still in the early stages of the Tribunal’s process.

10As a matter of course, parties are expected to complete the exchange of pleadings, i.e., Application, Response and Reply, prior to raising preliminary matters. Further, the Tribunal has repeatedly stated that, absent exceptional circumstances, the Tribunal generally requires respondents to file a completed response prior to making preliminary requests, such as requests for early dismissal, requests for particulars, requests for disclosure. See Grant v. Bombardier, 2009 HRTO 267; Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180; Verduci v. Irandoust, 2009 HRTO 1585; Wood v. Sears Canada, 2009 HRTO 2126; Ugolini v. Salvation Army Barrie, 2009 HRTO 1801; Davis v. United Food & Commercial Workers Canada, Local 333, 2010 HRTO 394; Juani v. Mississauga (City), 2010 HRTO 1298; Bose v. Ontario Reality Corporation, 2010 HRTO 1437; Asefa v. Can-Am Logistics, 2010 HRTO 1531; and Rose v. Toronto Police Services Board, 2011 HRTO 1784.

11I note that two of the cases which the respondents rely upon for the proposition that they are entitled to disclosure, namely Boyce v. Toronto Community Housing Corporation, 2011 HRTO 1677 and Neilon v. Bourgeois Motors, 2010 HRTO 528 were proceedings at more advanced stage where pleadings had already been exchanged and hearing dates were imminent. I find that the other two cases relied upon by the respondents also involved distinguishable circumstances. It appears that the Vice-chairs in both Bryer v. (City) Toronto, 2010 HRTO 2389 and Power v. Toronto Transit Commission, 2011 HRTO 1462 were persuaded to issue early disclosure orders, in part, because the records comprised of medical files that were gathered by the respondents as part of their accommodation and employment of the applicant and were the respondents’ own records collected and maintained by special departments within their organization. These records required the applicant’s consent or an Order of the Tribunal to be accessed. Notably, both of those cases also reiterated the point that orders for disclosure in advance of the normal course of pleadings should only occur in exceptional situations.

12Further, I do not find that the Application is lacking such specifity or that the allegations are so vague or confusing that the respondents are precluded from knowing the general case to which they have to respond. I note that the Application narrative identifies where the applicant worked, the nature of his duties and health condition and to whom he complained within the respondent organization about his disability-related concerns. Given the information provided in Form 1, Form 1A, and the narrative, I do not accept that the respondents need access to the applicant’s complete WSIB file in order to respond to his allegations.

13The respondents have not indicated what aspects of the failure to accommodate allegation requires advance disclosure. Presumably, the respondents have whatever documents and information they relied upon at the time they made their accommodation decisions which they allege were appropriate and that which the applicant impugns. The respondents have not persuaded me that they require additional documents and information in the possession of a third party agency in order to explain their position in response to the applicant’s allegations.

14As such, I do not accept that the respondents claim that they cannot meaningfully respond without access to the applicant’s complete WSIB file. I also question whether the whole of the applicant’s WSIB file is necessary disclosure for the purposes of responding to the allegations.

15Consequently, at this stage of the proceedings, the Tribunal denies the respondents’ request for disclosure and production. Should the respondents maintain that they require disclosure prior to the Rule 16 exchange of arguably relevant documents, such a request can be made and the basis for such a request explained along with filing the Response.

ORDER

16The respondents’ request for disclosure production is denied. Within 35 days of the date of this Interim Decision, the respondents are required to file a Response (Form 2).

17I am not seized.