HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nicole Allinson
Applicant
-and-
Delta Investigative Services and Joe Cabral
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Allinson v. Delta Investigative Services
WRITTEN SUBMISSIONS
Nicole Allinson, Applicant ) Grace Vaccarelli, Counsel
Delta Investigative Services and ) James LeNoury, Counsel
Joe Cabral, 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 July 5, 2013, alleging sexual harassment and solicitation with respect to employment.
2On July 24, 2013, the Tribunal forwarded a copy of the Application and a Notice of Application to the respondents and directed the respondents to file their Response(s) by August 28, 2013.
3On August 23, 2013, the respondents filed a Request for an Order During Proceedings (“Request”) asking the Tribunal for an extension of time to file their Response on the basis that they required particulars and production in order to file their Response.
4The respondents ask that the Tribunal order the applicant to produce a copy of an alleged tape recording referenced in the applicant’s narrative and also that the applicant be ordered to provide additional particulars. The respondents submit that their counsel requires the tape recording in order to prepare their Response. The respondents further submit that they require particulars of date, time, location and witnesses to each and every allegation being made against the respondents. The respondents argue that the Application is contains broad allegations of numerous events over a number of years without providing specifics. The respondents claim they require these particulars to make a full response to the allegations against them.
5The applicant filed a response to the respondents’ Request on September 11, 2013. The applicant submits that the respondents’ request for production of the tape recording is premature. The applicant submits that, while exact dates have not been provided, the Application includes sufficient particulars. The applicant argues the respondents are able to respond the applicant’s allegations in that the individual respondent knows whether or not he made sexual advances and sexually solicited the applicant citing eleven examples.
DECISION
Particulars
6The respondents’ request for particulars is denied at this time.
7I do not agree that the information provided by the applicant regarding her concerns of sexual harassment and sexual solicitation is so inadequate or vague that additional particulars must be ordered at this stage of the proceedings in order for the respondents to understand the alleged claims.
8As 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 a respondent 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.
9In 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 are the alleged facts and legal issues that give rise to a breach of the Code.
10I find that there is sufficient detail in this Application for the respondents to discern the nature of the alleged infringements of the Code and the general legal issues that need to be answered. For example, the applicant’s narrative appears to include the following allegations and provides the following information:
The applicant alleges that she experienced sexual harassment, sexual solicitation and a poisoned work environment;
The applicant alleges that the sexual advances were perpetrated by by the individual respondent between May 2009 and November 2012 and that the incidents occurred most often during Friday lunches;
The applicant alleges that the sexual advances and sexual harassment perpetrated by the individual respondent included requests for a kiss, hugs, sex, overtures that they run away together and asking the applicant to take her shirt off;
The applicant alleges that the poisoned work environment included inappropriate comments and pornography in the workplace;
The applicant identifies certain people who participated in the alleged offensive behaviour and remarks, as well as persons whom she informed about the alleged conduct;
The applicant alleges that despite the fact that she refused the individual respondent’s overtures, he persisted in making advances; and
The applicant alleges that on occasion she acquiesced to the individual respondent’s requests for a hug or a kiss because she feared losing her new career.
11When 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 aspects of the claims are so deficient of information that the respondent is unable to comprehend the facts and legal issues which trigger the alleged Code violations and, as consequence, makes it that the respondent is unable to comply with the obligation to file a response.
12The respondents have failed to explain on what basis they are unable to comprehend what concerns give rise to a breach of the Code. The respondents simply make the bald assertion that the Application lacks particulars, but do not identify what aspects of the allegations are so devoid of particulars that they are precluded from responding.
13Based 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 respondents are completely prevented from responding to the claims. as such, this case does not demonstrate the exceptional circumstances necessary to justify an order for particulars in advance to the respondents filing their responses.
14At this stage of the proceeding, I find that the Application is sufficiently detailed for the respondents to indicate what aspects of the Application are accepted or disputed and to set out their general defense to the claim. I note that it remains open to the respondents to renew their request for particulars at a later point in the process. Consequently, the Tribunal denies the respondents’ request for an order requiring particulars prior to the filing of their Response.
Production of Tape Recording
15The Tribunal’s Rules of Procedure (“Rules”) sets out the obligations and requirements that parties must satisfy with respect to exchange of arguably relevant information and production of anticipated hearing evidence.
16Rule 16 requires that parties to an Application will exchange arguably relevant documents 21 days after the Notice of Hearing is issued by the Tribunal, which has not yet occurred in this case. Rule 17 requires parties to exchange witness lists and summary of expected hearing evidence no later than 45 days prior to the first scheduled hearing day. Copies of anticipated evidence intended to be relied upon in the hearing are required to be exchanged at this time.
17The tape recording sought by the respondents may potentially be part of the applicant’s arguably relevant disclosure under Rule 16.
18As noted above, the Tribunal has repeatedly stated that it will not exercise its discretion to allow for early production of documents, except in exceptional circumstances. The respondents have not identified any exceptional circumstances in this case. The respondents have offered no explanation why an exception should be made by the Tribunal to require arguably relevant disclosure in advance of the Rules.
19Consequently, the Tribunal must deny the respondents’ request for production because the request is premature. As such, the Tribunal will not make any order with respect to production at this stage of the proceeding. This determination is made without any indication of the appropriateness of the production sought and without prejudice to any position the parties may wish to take regarding the issue of disclosure and production.
ORDER
20The respondents’ Request is denied.
21Within 21 days of the date of this Interim Decision, the respondents are required to file their Response(s) (Form 2).
22I am not seized.
Dated at Toronto, this 19th day of September, 2013.
“Signed By”
Ena Chadha
Vice-chair