Oulds v. Holcim (Canada) Inc., 2013 HRTO 1621

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Oulds

Applicant

-and-

Holcim (Canada) Inc. and Kevin Hickey

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 26, 2013

Citation: 2013 HRTO 1621

Indexed as: Oulds v. Holcim (Canada) Inc.

WRITTEN SUBMISSIONS

Kevin Oulds, Applicant

Self-represented

Holcim (Canada) Inc. and Kevin Hickey, Respondents

Samantha Crumb, Counsel

Introduction

1This Interim Decision addresses the respondents’ request for the applicant’s consent for the release of his Workplace Safety and Insurance Board (“WSIB”) file before they file their Response to the Application and the applicant’s request to reactivate his deferred Application.

2The Application alleges that the respondents discriminated against the applicant because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant claims the respondents failed to accommodate his disability when they refused to allow him to return to work with restrictions and instead, required him to access short term disability benefits. It appears that the Application pertains to a fourteen day period commencing sometime after October 19, 2012.

3By Interim Decision, 2013 HRTO 240, dated February 11, 2013, the Tribunal deferred consideration of the Application pending the resolution of the applicant’s objection to the WSIB. The WSIB rendered its decision on the objection on July 8, 2013.

4The applicant has sought to re-activate his Application and has made his request within the 60 day time limit in the Tribunal’s Rules of Procedure. The respondents take no position in regards to the applicant’s request. However, by letter dated September 18, 2013, the respondents requested the applicant’s consent for the release of his WSIB file in order to prepare their Response. The applicant did not respond to the respondents’ request.

5The key question raised in relation to the respondents’ request is whether disclosure is necessary for the respondents to fulfill their obligation to file a Response. The underlying issue is whether or not the Application is so deficient of information about the alleged facts and legal issues that the respondents are unable to file a Response.

6Pursuant to Rule 16 of the Tribunal’s Rules of Procedure, 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. A Confirmation of Hearing has yet to be issued because this matter is still in the early stages of the Tribunal’s process.

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 Cunningham v. Showa Canada Inc., 2012 HRTO 698 and cases cited in that decision.

8I do not find that the Application is lacking such specificity or that the allegations are so vague or confusing that the respondents are precluded from knowing the general case to which they have to respond. Given the information provided in Form 1, Form 1A, and the narrative, I do not accept that the respondents need access to the applicant’s complete WSIB file in order to respond to his allegations.

9The respondents have not indicated what aspects of the failure to accommodate allegation requires advance disclosure. Presumably, the respondents have whatever documents and information they relied upon at the time they made their accommodation decisions in relation to the applicant. For these reasons, I am not persuaded that the respondents cannot meaningfully respond without access to the applicant’s WSIB file.

10Consequently, at this stage of the proceedings, the Tribunal denies the respondents’ request for disclosure and production. If the respondents maintain that they require disclosure prior to the Rule 16 exchange of arguably relevant documents, such a request can be made and the basis for the request explained along with filing the Response.

ORDER

11For the reasons set out above the Tribunal orders:

a. The Application is re-activated.

b. The respondents’ request for the applicant’s consent for the release of his WSIB file is denied. Within 35 days of the date of this Interim Decision, the respondents are required to file a Response (Form 2).

12I am not seized.