Human Rights Tribunal of Ontario
Between:
Kristopher Montgomery Applicant
-and-
Town of Bradford West Gwillimbury Respondent
Interim Decision
Adjudicator: Geneviève Debané Date: October 4, 2013 Citation: 2013 HRTO 1677 Indexed as: Montgomery v. Bradford West Gwillimbury (Town)
1This matter is scheduled for hearing on December 2, 3 and 4, 2013, in Toronto.
2This Interim Decision addresses a number of procedural issues including a Request for an Order during Proceedings seeking the production of arguably relevant documents (the "RFOP").
Background
3On September 19, 2013, the Tribunal issued a Case Assessment Direction ("CAD") which directed the applicant to file a Form 11 Response to the RFOP by no later than September 25, 2013. The same day the Tribunal sent the CAD to the applicant's representative by email and received an automatic email reply which simply stated "I am currently out of the office returning on September 30 2013".
4The Tribunal then forwarded the CAD directly to the applicant. On October 2, 2013, the Tribunal received an email from the applicant in which he states that he contacted his representative and "he informs me this matter has been responded to; both to the other party and the hrto." In fact, this assertion is incorrect since the Tribunal has had no contact with the representative since the issuance of the CAD. Counsel for the respondent also confirms that it has not received any response to the RFOP.
5On October 2, 2013, the Tribunal sent to the respondent an email requesting it forward to the Tribunal a complete Schedule "A" to its Response and to clarify the dates of the documents sought in its RFOP. This information was received on October 3, 2013.
The RFOP
6The Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8. Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Lampi at para. 9.
7The respondent seeks the disclosure of medical records and mitigation documents. Having reviewed the pleadings and the nature of the allegations in dispute, I find that the documents sought by the respondent are arguably relevant to the proceedings and the respondents are entitled to the production of these documents.
The Incomplete Response
8The Tribunal did not receive a complete Schedule "A" to the respondent's Response. As such, the applicant has not had the opportunity to respond to two additional pages of submissions. In these circumstances, it is appropriate to direct the applicant to file a revised Reply to the Response.
The status of the applicant's representative
9The Practice Direction on Representation before the Social Justice Tribunals Ontario Policy sets out who may act as representatives before the Tribunal and it is not clear that the applicant's representative comes within any of the permitted categories or exemptions set out in the policy.
10The applicant or the applicant's representative will immediately identify the category or exemption, as described in the Tribunal's Policy on Representation before the HRTO or by the Law Society of Upper Canada, within which the applicant's representative comes that would permit him to act as a representative before the Tribunal.
11The applicant's representative will also explain why he did not respond to the CAD as directed to do so by the Tribunal.
Order
12The Tribunal orders:
a. That the applicant and/or his representative within seven days must provide the following information to the Tribunal with a copy to the respondent:
i. identify the category or exemption, as described in the Tribunal's Policy on Representation before the HRTO or by the Law Society of Upper Canada, within which the applicant's representative comes that would permit him to act as a representative before the Tribunal; and
ii. explain why the applicant did not comply with the directions in the CAD.
b. That the applicant will produce to the respondent within 21 days of the date of this Interim Decision the following documents:
i. A copy of all arguably relevant medical information, including but not limited to, medical notes, charts, documents, reports, memoranda, clinical notes and test results relating to the applicant's diagnosis and treatment for anxiety and depression for the period of June 2011 to February 2012, including the notes of Megan Franko, RPN, Dr. Nair and any other treating medical professional;
ii. A copy of all arguably relevant medical information, including but not limited to, medical notes, charts, documents, reports, memoranda, clinical notes and test results relating to the applicant's diagnosis and treatment for narcotics addiction in the period February 8 to February 15, 2012;
iii. Copies of admission documentation or other material demonstrating the Applicant's admission to the London Salvation Army Centre or other facility in the period of February 8, to February 15, 2012; and
iv. All mitigation information, including copies of all job applications and resumes and information with respect to any income earned during the time period that the applicant is seeking wages, including any T-4 and income tax statements.
c. That the applicant will deliver and file a revised Reply within 14 days of the date of this Interim Decision.
13Since the applicant's representative has not been communicating with the Tribunal and the applicant has been sending emails directly to the Tribunal, the Tribunal directs that the respondent, until further notice, is required to copy both the applicant and his representative on any future correspondence. The Tribunal will also be sending correspondence directly to both the applicant and his representative.
14If the applicant does not comply with the orders in this Interim Decision then the Application may be dismissed as abandoned.
15I am not seized.
Dated at Toronto, this 4th day of October, 2013.
"Signed by"
Geneviève Debané
Vice-chair