Graham v. Underground Miata Network Associations Inc., 2013 HRTO 1250

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Graham

Applicant

-and-

Underground Miata Network Associations Inc.

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: July 17, 2013

Citation: 2013 HRTO 1250

Indexed as: Graham v. Underground Miata Network Associations Inc.

APPEARANCES

Donna Graham, Applicant

Self-represented

Underground Miata Network Associations Inc., Respondent

Roland Beaulne, Representative

INTRODUCTION

1The purpose of this Interim Decision is to address the applicant’s request that the respondent disclose the names of members who complained orally to the respondent’s executive about the applicant’s use of a Google message board. The Interim Decision also confirms directions I provided to the parties at the case management conference held on July 16, 2013.

2The applicant has filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to the provision of services because of disability. She also alleges reprisal.

3The respondent is a recreational car club. It has adopted a policy that allows the members who lead the club’s recreational tours to determine whether all participants on a given tour must have their car equipped with a Citizens’ Band (CB) radio in order to take part in the tour. Prior to the adoption of the policy, the use of a CB radio was always encouraged but never mandatory.

4The applicant has a hearing disability. She maintains that she cannot use a CB radio and that the respondent has refused to accommodate her disability. The applicant alleges that she has repeatedly tried to get the respondent to change its policy through discussion within the club, but has had no success. She alleges that as a result of her efforts to pursue this issue and as a reprisal measure, the respondent has barred her from participating in its online chat forum unless she refrains from raising her concerns about the policy.

5At the telephone conference, I provided the following oral directions to the parties:

Witnesses

a. Within one week of the date of this interim decision, the applicant will provide a brief statement (approximately one paragraph) summarizing her expected evidence at the hearing;

b. Within two weeks of the date of this interim decision, the respondent will provide a more detailed statement (approximately one paragraph) summarizing each of its proposed witnesses’ expected evidence;

c. Within three weeks of the date of this interim decision, if the applicant wishes to summons any further witnesses, she will advise the Tribunal and the respondent in writing by delivering and filing a Form 24 along with a statement summarizing each of these additional witnesses’ expected evidence.

Hearing documents

a. Within two weeks of the date of this interim decision, each party will deliver to each other and file with the Tribunal an index of the documents they intend to rely on at the hearing. The parties need not deliver to each other or to the Tribunal the actual hearing documents at this stage;

b. Within three weeks of the date of this interim decision, each party will identify (by writing to the Tribunal and copying the opposing party) any documents from the opposing party’s index which they object to being introduced as evidence at the hearing.

c. Each party must bring to the hearing a book of documents, which contains clean copies of the documents that party intends to rely on at the hearing. The documents in the hearing book will be in chronological order and the pages of the book will be numbered.

Document disclosure

6As I indicated to the parties at the case management conference, their obligation to disclose any arguably relevant documents is ongoing and their disclosure obligations under Rule 16 apply to any arguably relevant documents generated up to the date of hearing.

7Within two weeks of the date of this interim decision, the respondent will:

a. direct the members of its executive to review their personal emails to determine whether they contain any written complaints about the applicant’s use of the Google message board and will provide to the applicant copies of any such emails;

b. provide to the applicant signed copies of her 2010 and 2011 membership forms.

Oral complaints

8The applicant has further requested the names of members who orally complained to the respondent’s executive about her use of the Google message board. She argues that this information is arguably relevant to her allegation that she was reprised against when her access to the message board was suspended.

9The respondent’s representative argued that this information is not arguably relevant to the Application. He submitted that the applicant’s use of the Google message board was suspended primarily because the applicant persisted in raising the issue of CB radios and her disability on the message board, even though she had been directed to deal directly with the executive on this matter. The respondent also stated that its decision to suspend her access to the message board was only partly in response to member complaints about the applicant’s use of the message board. The respondent’s representative further argued that the names of members who complained orally is not material to the applicant’s allegations of discrimination.

10As I indicated to the parties orally at the telephone conference, I find that the names of the members who made oral complaints are arguably relevant to the applicant’s reprisal allegations. While the applicant has asked that the names of these complainants be disclosed to her, she is not seeking disclosure of their contact information or addresses.

11In my view, it is appropriate to order that the names of oral complainants be disclosed to the applicant. I direct the respondent to communicate with the members of its executive at the material times and request that each executive provide (to the best of his or her recollection) the name of all individuals who orally complained to him or her about the applicant’s use of the Google message board. Within two weeks of the date of this interim decision, the respondent will disclose to the applicant the names of complainants that it has obtained. Subsequent to this, if the respondent obtains any further names, it will provide those to the applicant as part of its ongoing disclosure obligations.

12At the close of the telephone conference, the parties both indicated that they wished to participate in a mediation-adjudication on August 20, 2013. I explained to the parties that they must nevertheless be prepared to proceed with the hearing on that date, should the discussions not result in an agreement.