Jonathan Dunn v. Grand Erie District School Board and Sandra Magnani, 2012 HRTO 83

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Dunn

Applicant

-and-

Grand Erie District School Board and Sandra Magnani

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: January 13, 2012

Citation: 2012 HRTO 83

Indexed as: Dunn v. Grand Erie District School Board

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on December 18, 2009. The Application alleges discrimination in services on the basis of disability and is scheduled for hearing on January 17, 2012.

2On January 5, 2012, I issued a Case Assessment Direction addressing a request for an extension to provide disclosure brought by the applicant and a request for an adjournment brought by the respondents. I granted the extension but found that any adjournment was premature as the respondents had yet to receive the documents and witness statements of the applicant. I indicated that the respondents could renew their request after they had received the material.

3On January 9, 2012, the respondents renewed their request for an adjournment based on the applicant’s late disclosure of the required documents and witness statements. In detailed submissions, the respondents recite the history of their interactions with the applicant including that they received a request for documents from the applicant in an email December 25, 2011; that they were unable to provide a response to that email because the respondent school board was closed until January 9, 2012; and that they have only now received summaries of statements for nine witnesses, which for the most part consist of single sentence summaries and do not assist in preparing for the hearing.

4The respondents argue that the late disclosure and quality of witness statements prevent the respondents from being able to adequately prepare for the hearing and thus they are prejudiced. The respondents further state that an adjournment is appropriate given the applicant has filed a Request for Order During Proceeding on January 6, 2012 seeking disclosure of various documents, which the respondents were only able to look into this week given the closure of the school board over the holiday period. The respondents state that the foregoing circumstances are exceptional and justify granting an adjournment.

5The applicant consents to the adjournment. The applicant’s representative states that he intends to rely on certain documents, which he has recently learned were destroyed when the applicant’s residence was condemned.

6The request to adjourn is granted. Having regard to all of the circumstances of this particular case, I find that it would be fair, just and expeditious to cancel the hearing on January 17, 2012 for the purpose of issuing directions to the parties regarding the outstanding production request and the form of the witness statements. I find that it would be appropriate to resolve the production request before the applicant begins his case and further that it would be fair to the respondents and a better use of the Tribunal’s resources to obtain proper witness statements prior to the commencement of the hearing. By doing so, I am not suggesting that all of the witnesses are relevant. The relevance of any particular witness will be determined in the normal course.

ORDERS

7Therefore the Tribunal orders:

a. Subject to paragraph 9 below, the hearing date of January 17, 2012 is cancelled;

b. The parties shall contact the Registrar with three mutually agreeable dates for the re-scheduling of the hearing in the period February 15, 2012 to April 30, 2012 by January 20, 2012;

c. The respondents shall respond to the Request for Production (Form 10) by delivering any response (Form 11) to the applicant and filing the same with the Tribunal by January 20, 2012. Should the respondent not consent to providing the documents requested, the applicant shall advise the Registrar in writing by January 23, 2012 to whether any requests remain outstanding and any further submissions in support of his Request.

d. The applicant shall provide amended witness statements for any witnesses he wishes to call by January 23, 2012. These witness statements should include the name of the witness, their title or connection to the issues in the Application, and a detailed statement of the particular evidence the witness will give.

e. If the respondent objects to any of the proposed witnesses for the applicant, the respondent shall provide detailed submissions in support of any objection by February 1, 2012. The applicant may provide any response to the respondents’ objections by February 8, 2012.

8I may determine the outstanding issues based on the written submissions received or may issue other directions as may be appropriate.

9I note that the parties had previously agreed to mediation, but the mediation was subsequently cancelled. If the parties wish to participate in mediation adjudication – with the mediation proceeding on January 17, 2012 at 1:00 p.m. they shall advise the Registrar of their interest in doing so by January 16, 2012 at 10:00 a.m.. If the parties are interested in participating in mediation adjudication and the Application does not resolve at the mediation, I would proceed to hear the Application on the hearing date to be scheduled. A copy of the Tribunal’s Mediation and Adjudication agreement is attached to this Interim Decision. The parties would be required to sign this agreement before commencing the mediation.