Kovacs v. DBG Canada Limited, 2013 HRTO 1536

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Kovacs

Applicant

-and-

DBG Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: September 13, 2013

Citation: 2013 HRTO 1536

Indexed as: Kovacs v. DBG Canada Limited

WRITTEN SUBMISSIONS

DBG Canada Limited, Respondent ) Stephen C. Bernardo, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 2, 2013, alleging discrimination with respect to employment on the basis of disability.

2On July 11, 2013, the Tribunal forwarded a copy of the Application and a Notice of Application to the respondent and directed the respondent to file its Response by August 15, 2013.

3On August 15, 2013, the respondent filed a Request for an Order During Proceedings (“Request”) asking the Tribunal for an extension of time to file its Response on the basis that it required particulars in order to file a Response. The respondent requests that the Tribunal order the applicant to provide particulars because the Application does not indicate what happened, who was involved, when it happened, where it happened, and the time it happened. The respondent provided no other submissions other than this statement in explaining its Request.

4The applicant did not file a response to the respondent’s Request.

DECISION

5The respondent’s request for particulars is denied at this time.

6I do not agree with the respondent that the information provided in the Application regarding the applicant’s concerns is so insufficient that particulars must be ordered at this stage of the proceedings.

7As 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.

8In Miga v. Arcelor-Mital Dofasco, 2012 HRTO 619, the Tribunal stated that the purpose of particulars is to alert responding parties and the Tribunal as to what alleged facts and legal issues give rise to a breach of the Code.

9I find that there is an adequate amount of detail in this Application for the respondent to discern the allegations of a breach of the Code and, therefore, the issues that need to be answered. For examples, the applicant’s narrative appears to include the following allegations and provides the following information:

• The applicant alleges discrimination in employment on the basis of disability;

• The applicant commenced employment on February 8, 2012, successfully passed probation and received two positive performance reviews prior to September 2012;

• The applicant alleges that starting in September 2012 until his dismissal on a number of occasions he was late for work and experienced absences because of his medical condition;

• The applicant alleges that the respondent requested and was provided with a medical note;

• The applicant alleges that the medical note indicated that the applicant would be undergoing medical tests and may need to take more time off work;

• The applicant alleges that despite being informed of the medical issues and that the medical issues required further investigation, the respondent alleged that the applicant’s absences were examples of lack of contact and poor communication. The applicant alleges that the respondent failed to address the matter of accommodation and his needs;

• The applicant alleges that, when he informed the respondent of the need to adjust his start time based on his doctor’s advice, the respondent admonished him;

• The applicant alleges that on a number of occasions he was disciplined and ultimately dismissed because of absences and lateness related to his disability;

• The applicant alleges that following his dismissal, the respondent denied having been aware of his medical issues and refused to provide him with disability forms; and

• The respondent and its agent refused to grant the applicant short term disability benefits.

10When a respondent challenges the sufficiency of particulars in an application prior to filing a response, there is an obligation on the respondent to explain what aspect of the application and the allegations are so deficient of information that the respondent is unable to comprehend the facts and legal issues which trigger the alleged Code violations and, therefore, is unable to comply with its obligation to file a response.

11The respondent’s Request fails to set out any submissions addressing this issue. As such, the respondent has failed to explain on what basis it perceives the Application and allegations to be so devoid of particulars regarding the alleged facts and legal issues that it does not know what allegations give rise to a breach of the Code.

12Based on my review of the Application, I do not accept that the applicant’s allegations are so vague, unclear or lacking in details that the respondent is completely prevented from responding to the claims.

13This case does not demonstrate the exceptional circumstances necessary to justify an order for particulars in advance to a respondent filing a response. At this stage of the proceeding, I find that the Application is sufficiently detailed for the respondent to indicate what aspects of the Application are accepted or disputed and to set out its general defense to the claim. I note that it remains open to the respondent to renew its request for particulars at a later point in the process. Consequently, the Tribunal denies the respondent’s Request for an order requiring particulars prior to the filing of its Response.

ORDER

14The respondent’s Request for particulars is denied. Within 21 days of the date of this Interim Decision, the respondent is required to file its Response (Form 2).

15I am not seized.