Maria Villena v. Canadian Blood Services, 2013 HRTO 2120

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Villena Applicant

-and-

Canadian Blood Services Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: December 27, 2013 Citation: 2013 HRTO 2120 Indexed as: Villena v. Canadian Blood Services

WRITTEN SUBMISSIONS

Maria Villena, Applicant No submissions

Canadian Blood Services, Respondent Sarah Eves, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment because of disability. The hearing of this matter is scheduled on January 9 and 10, 2014.

2On December 10, 2013, the respondent filed a Request for an Order During Proceedings (the “Request”) in which it submitted that the applicant has failed to meet her obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure (the “Rules”). Specifically, the respondent submitted that the applicant did not provide the documents listed at Tab 45 of the documents the applicant intends to rely upon at hearing and that the witness statements provided by the applicant do not meet the requirements of Rules 17.1, 17.2 and 17.3 as described in the Tribunal’s jurisprudence.

3By Case Assessment Direction, dated December 17, 2013, the Tribunal abridged the time for responding to the Request and directed the applicant to respond by the end of business on December 19, 2013. As of the date of this Interim Decision, the applicant has not responded to the Request and, as noted, the time for doing so has passed.

4In the Request, the respondent described its attempts to obtain the complete medical file of Dr. Gloria Meneses, the applicant’s family physician, whom the applicant intends to present as a witness at the hearing. The respondent notes that it was able to eventually obtain a copy of the file directly from Dr. Meneses’ office, but because it appears that a number of pages are missing in the file, the respondent is not confident that it has the complete file or that that the copy of the file that it has is the same as the copy the applicant filed with the Tribunal at Tab 45 of the applicant’s productions. The respondent stated that the applicant declined to provide a copy of Dr. Meneses’ file, i.e., Tab 45, because the respondent obtained a copy from the doctor’s office.

5The respondent submits that the witness statements provided by the applicant are extremely brief and only summarize the general topics that will be discussed by each witness. Consequently, the respondent submits that the applicant’s witness statements do not meet the substantive requirements for such statements as described in the Tribunal’s jurisprudence. The respondent also submits that, to the extent that Dr. Meneses is to give expert evidence, the applicant has not met the requirements of Rule 17.3 to provide a written report or a full summary of her evidence, along with her curriculum vitae.

Decision

6The applicant is obliged, pursuant to Rule 16.2(b), to provide to the respondent a copy of all the documents on which she intends to rely at hearing or to confirm that the documents have already been produced in accordance with Rule 16.1. While the respondent has received a copy of Dr. Meneses’ file, the respondent’s submissions describe a reasonable basis for its concern that its copy is not the same as the documents filed with the Tribunal at Tab 45 of the applicant’s productions. In the absence of submissions from the applicant to the contrary, I am satisfied that it is appropriate to require the applicant to provide the respondent to provide a copy of these documents to the respondent.

7The witness statements the applicant filed provide some detail, but largely describe the general subject matter about which she expects her witnesses to testify. As a result, these witness statements do not meet the requirements of Rule 17.2 as described in C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, as follows at paragraph 7:

The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

8The materials filed by the applicant to date do not indicate that she intends to call Dr. Meneses as an expert witness, but if she does she has not complied with the requirements of Rule 17.3.

Order

9The Tribunal orders as follows:

1. The applicant shall immediately deliver to the respondent a copy of the documents filed with the Tribunal at Tab 45, i.e., Dr. Meneses’ complete file regarding the applicant;
2. The applicant shall immediately file with the Tribunal and deliver to the respondent detailed witness statements regarding all of the witnesses she intends to present at the hearing, including for herself, that comply with requirement of Rule 17.2, as described in the Tribunal’s jurisprudence;
3. The applicant shall either immediately advise the Tribunal and the respondent that she does not intend to call Dr. Meneses as an expert witness or, if she does, immediately comply with the requirements of Rule 17.3; and
4. If the applicant has not complied with the Tribunal’s order, described in paragraph 9(1),(2) and (3), above, by the end of business on December 31, 2013, the Tribunal may take any or all of the steps in Rule 5.