Andre Patterson v. Toronto District School Board and Donna Quan, 2013 HRTO 404

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andre Patterson

Applicant

-and-

Toronto District School Board and Donna Quan

Respondents

-and-

Toronto School Administrator’s Association

Affected Party

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: March 8, 2013

Citation: 2013 HRTO 404

Indexed as: Patterson v. Toronto District School Board

WRITTEN SUBMISSIONS:

Andre Patterson, Applicant ) Selwyn Pieters, Counsel

Toronto District School Board and Donna ) Jason Green, Counsel

Quan, Respondents )

1This is an Application filed on July 16, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of age, race, ancestry, colour and association with a person identified by a Code ground. The applicant also alleges that he experienced reprisal or the threat of reprisal. On August 9, 2012, the Application was served on the respondents.

2Following a request for an extension of time and further particulars, the respondents filed a Response denying the allegations on October 24, 2012. The applicant was sent the Response and informed that the deadline for filing a Reply was November 8, 2012.

3The applicant sought an extension of time to file his Reply and was granted until November 22, 2012 to do so. On the 14th of November, 2012, the applicant filed a Request for Order during Proceedings (“RFOP”) in which he sought additional particulars and production. The respondent filed a Form 11 responding to the Request for Order.

4Following receipt of the Form 11, the applicant retained counsel who submitted additional submissions in support of the RFOP on December 17, 2012. Finally, the Tribunal received a further submission from the respondents on December 24, 2012, responding to the December 17th materials.

5The issue underlying the applicant’s Request is whether or not he is able to comply with his obligation under the Tribunal’s Rules to file a Reply to the Response. According to Rule 9.1, an applicant who intends to prove a version of the facts different from those set out in a Response is required to include those facts in the Reply, unless such facts are already stated in the Application. The purpose of a Reply is to respond to new matters raised in the Response.

6The object of the Tribunal Rules with respect to parties’ obligations to file complete Applications, Responses and Replies is to afford all parties an opportunity to state and frame their case and an opportunity to know and respond to the other side’s case so as to promote a fair, just and expeditious hearing process: Morra v. Gesco, 2010 HRTO 1606. This is not a situation in which the “material facts”, as described in Garrelhas v. ICE Consultants Inc., 2005 HRTO 51, generally the “who, what, when and where”, are missing from the Response. The Response is detailed and provides information in answer to the applicant’s allegations. There is nothing to indicate that the respondent’s Response is so lacking that the applicant cannot provide a meaningful Reply to the respondent’s allegations. As such the request for particulars is denied.

7Pursuant to Rule 16 of the Tribunal’s Rules, 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 Notice of Confirmation of Hearing. As such, each party must deliver to the other all arguably relevant documents in its possession within 21 days after the Tribunal sends a Notice of Confirmation of Hearing to the parties. As indicated above, the Application is at a stage where the pleadings are being filed. No Notice of Confirmation of Hearing has been issued in this case and there are no special circumstances that justify a disclosure order at this stage of the process.

8While the applicant has referred me to the decision of the Tribunal in Sultan v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1631, in which he argues similar information was ordered produced because it was deemed to meet the test of arguable relevance, that Interim Decision addressed a circumstance where a Notice of Confirmation of Hearing had been sent out and a dispute had arisen as to whether all arguably relevant material has been exchanged by the parties. The earlier decision by the Tribunal in that same Application, denying a request for particulars and production during the pleadings stage of the process, relied upon by the respondents in their submissions, is more relevant to the request being decided in this instance, Sultan v. Ontario (Community Safety and Correctional Services), 2010 HRTO 2445.

9The applicant’s request for production of documents at this stage of the proceedings is denied as premature.

10The deadline to file a Reply is 14 days from the date of this Interim Decision. If it is necessary to amend any pleadings because of further disclosure at a later point, either party may ask for leave to do so.

11I am not seized.