Chad McLeod v. Vale Inco Ltd., 2013 HRTO 1184

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chad McLeod Applicant

-and-

Vale Inco Ltd. and Claire Parkinson Respondents

DECISION

Adjudicator: Ruth Carey Date: July 8, 2013 Citation: 2013 HRTO 1184 Indexed as: Chad McLeod v. Vale Inco Ltd.

WRITTEN SUBMISSIONS

Vale Inco Ltd. and Claire Parkinson, Respondents Kevin Inwood, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.

2On May 17, 2013 the respondents filed a Request for Order During Proceeding (“RFOP”) asking that this Application be dismissed as abandoned. For the reasons stated below, the respondents’ RFOP is granted.

FACTUAL BACKGROUND

3This Application was filed with the Tribunal on February 16, 2011.

4By way of Interim Decision 2011 HRTO 897 issued on May 6, 2011, the Application was deferred pending the outcome of an application by the applicant to the Ontario Labour Relations Board (“OLRB”) alleging a violation of s. 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended. The OLRB matter was scheduled to be heard on August 25, 2011. On August 23, 2011 the applicant withdrew his application to the OLRB. In Interim Decision 2011 HRTO 1959 issued on October 31, 2011 the Tribunal granted the applicant’s request to proceed with this Application. Mediation was unsuccessful and on January 3, 2013 the Registrar issued Notice of Confirmation of Hearing. The hearing was rescheduled on consent to be heard in Sudbury on August 13 and 14, 2013.

5The Notice of Confirmation of Hearing set out detailed instructions as to the parties’ disclosure obligations. It stated that pursuant to Rule 16.1 of the Tribunal’s Rules of Practice:

By February 14, 2013 you must deliver to every other party:

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

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

6With respect to the disclosure obligations in Rules 16.2, 16.3, 17.1, and 17.2 the Notice also said:

Unless otherwise directed by the HRTO, not later than June 28, 2013 you must deliver to every other party and file with the HRTO:

• a list of all documents you intends 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.

7In anticipation of the February 14, 2013 deadline for exchange of arguably relevant documents pursuant to Rule 16.1, the applicant wrote to the Tribunal on January 24, 2013 requesting an extension of time. In support of this request the applicant stated:

My wife and I recently separated and the bulk of my file resides in the matrimonial home which she now occupies, I have been working diligently right up to and including today through my lawyer trying to obtain access to the home to retain the documents but to no avail. I have a phone call into the local Police Services for their help but have not been contacted back regarding options and dates to attend the residence. I would like to request a stay or extension of the disclosure dates for the case to allow me time to obtain all the required documents.

8By way of e-mail dated January 24, 2013, the respondents consented to an extension of time with respect to the Rule 16.1 production of arguably relevant documents until February 27, 2013. The Registrar granted the requested extension to February 27, 2013 but noted: “The parties’ obligations under Rule 16.2, 16.3 and Rule 17 remain unchanged and they must comply with these disclosure deadlines 45 days prior to the first scheduled hearing date.”

9On February 26, 2013 the applicant requested a further extension of time. His e-mail states that the extension was necessary:

…due to my continuing problems with my ex wife failing to release all my files from the matrimonial home… I will forward copies of my lawyer letter to my wife and her legal representative requesting all said documentation… I would please ask for another thirty day extension this will allow me time to attend court to have the documents along with other belongs court ordered into my possession.

10The applicant never forwarded a copy of any letter from his lawyer to his former wife concerning accessing his belongings.

11The respondents wrote to the Tribunal with respect to this second extension request saying they were unable to take a position until they received the lawyer’s letter that the applicant had referenced and said would be forthcoming. The Registrar mistakenly read the respondents’ e-mail as consenting to the second extension request, and on February 28, 2013 wrote to the parties granting an extension of the Rule 16.1 disclosure deadline to March 29, 2013. The parties were again reminded that the date for disclosure under Rules 16.2, 16.3 and 17 remained unchanged.

12On April 1, 2013, the applicant wrote to the Registrar saying: “I am unfortunately experiencing ongoing struggles with my ex-wife allowing access to my property which includes all the disclosure documents. These property issues are before the courts…” His e-mail requested “a suspension of the hearing…pending my ability to access the documentation rather than having to request continual extension dates for disclosure…” The respondents objected to the applicant’s request.

13By way of Interim Decision 2013 HRTO 698 dated April 25, 2013, the applicant’s requests to suspend or adjourn the hearing were denied. With respect to the applicant’s Rule 16.1 disclosure obligation, the Interim Decision said at paras. 23-25:

With respect to the applicant’s inability to satisfy his arguably relevant disclosure obligations, the applicant’s deadline for exchanging arguably relevant disclosure has already been twice extended. Pursuant to Rule 16, 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 and copies of documents intended to be relied upon in the hearing are required to be exchanged no later than 45 days prior to the first scheduled hearing day.

The applicant previously stated that he would provide confirmation from his lawyer of their efforts to secure the materials; however, the applicant has failed to furnish any such proof. The applicant did not provide the respondents with any arguably relevant disclosure in accordance with Rule 16, nor even indicate what documents he believes he may be able to retrieve.

In this circumstances, the Tribunal directs the applicant to comply with Rules 16 with respect to disclosure of arguably relevant documents by no later than 21 days from the date of this Interim Decision. If the applicant fails to do so, the Application may be dismissed as abandoned.

14The effect of this Interim Decision was to extend the parties’ Rule 16.1 deadline to May 16, 2013.

15The Tribunal sent the Interim Decision to the applicant by mail and by e-mail. On May 9, 2013, Canada Post returned the applicant’s mail to the Tribunal stamped “moved/unknown”.

16Correspondence between the parties on file indicates that the respondents sent e-mails to the applicant asking him to confirm his mailing address. It would appear that they received no response, so on April 30, 2013, they mailed their production to the applicant’s only known address and on May 10, 2013, they couriered an additional copy to him in care of his union hall.

17After close of business on May 16, 2013, the respondents filed their RFOP requesting that the Application be dismissed because: the applicant had not complied with the Interim Decision of April 25, 2013; nor had he written to explain his non-compliance. Their Statement of Delivery indicates the applicant was sent the RFOP by e-mail. The RFOP explicitly mentions the Interim Decision, and the deadline set out in it; and a copy of the Interim Decision was attached to the RFOP.

18A few hours after the RFOP was served on the applicant, he sent an e-mail to the respondents copied to the Tribunal. It was sent from the same e-mail address the applicant has always used in his correspondence with the Tribunal and the respondents. It says the applicant temporarily lost access to the internet due to his economic circumstances and that he was “just getting your e-mails now”. The e-mail also provided a new mailing address. With respect to the substance of the RFOP the e-mail says: “please excuse my tardiness but finances are hard” and “I am now back to work and will be forwarding a lawyers letter detailing my inability to access all my disclosure documents”. Given the content of this e-mail from the applicant, I am satisfied that by May 16, 2013 at the latest, the applicant was aware of the Tribunal’s Interim Decision of April 25, 2013 and the respondents’ RFOP requesting dismissal of the Application.

19Although the applicant’s May 16, 2013 e-mail again says he will forward a letter from his lawyer detailing his problems with accessing documents, he has not done so and the Tribunal has had no further contact with the applicant.

20Due to an administrative oversight, the Tribunal took no action with respect to the respondents’ RFOP. On June 28, 2013 the respondents learned of the oversight and re-submitted their RFOP. Their covering letter states that the applicant has not responded to the RFOP and indicates the applicant was sent their correspondence by e-mail.

21The deadline for the parties’ disclosure obligations in Rules 16.2, 16.3, 17.1, and 17.2 has now passed.

REASONS

22Rule 5.6 of the Tribunal’s Rules says:

5.6. Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

23The applicant requested and received two extensions of time with respect to his Rule 16.1 disclosure obligations. After he failed to meet the second deadline of March 29, 2013 the Tribunal extended the date a third time by way of the Interim Decision issued on April 25, 2013. That Decision explicitly warned the applicant that if he failed to comply with the Decision, his Application might be dismissed.

24Although it is unclear when the applicant received the decision of April 25, 2013, he was aware of it at the latest by May 16, 2013.

25In Ouwroulis v. New Locomotion, 2009 HRTO 335, the Tribunal stated:

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

26The Tribunal has not had any contact with the applicant since May 16, 2013, even though he is aware of: the respondents’ RFOP requesting the Application be dismissed; the May 16, 2013 deadline in the Interim Decision and the potential consequences for failing to meet it; and the June 28, 2013 deadline for productions under Rules 16.2, 16.3, 17.1, and 17.2. The applicant has received three extensions of time with respect to productions due under Rule 16.1, and although the applicant has twice indicated he would forward a letter to the respondents and the Tribunal from his lawyer regarding his efforts to retrieve documents from the matrimonial home, he has failed to do so. He has not written the Tribunal with submissions opposing the request in the RFOP to dismiss his Application.

27Given all of these circumstances, I am satisfied that the applicant has abandoned the Application. The request in the respondents’ RFOP that the Application be dismissed is granted. The Registrar will cancel the hearing scheduled for August 13 and 14, 2013 in Sudbury.

DECISION

28The Application is dismissed as abandoned.