HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joseph Tisseur
Applicant
-and-
Rahn Plastics Inc.
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Tisseur v. Rahn Plastics Inc.
WRITTEN SUBMISSIONS
Joseph David Tisseur, Applicant
Self-represented
Rahn Plastics Inc., Respondent
Brian R. Gatien, Counsel
Introduction
1This Interim Decision addresses the two Requests for Order During Proceedings (“Requests”) filed by the applicant. It also addresses the respondent’s failure to comply with its disclosure obligations under Rule 16.1 of the Tribunal’s Rules of Procedure (“Rules”). Finally, it addresses the respondent’s request that the applicant clarify whether he is being legally represented.
Requests for Order During Proceedings
2The applicant filed an Application on December 7, 2011, alleging discrimination in employment on the basis of disability. He also alleged that the respondent reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Based on his answer to Question A15 of his Application, the applicant appears to allege that he was assigned work that exceeded his medical restrictions. In his answer to Question 8 of Form 1 of his Application, he appears to allege that he was discriminated against because of disability when his employment was terminated on or around September 19, 2011. In his Application, the applicant also alleges that he was bullied by his supervisor and denied compensation. However, the connection between these allegations and the protected ground of disability is unclear from the Application.
Applicant’s September 21, 2012 Request
3In his September 21, 2012 Request the applicant seeks “to add as evidence to be presented to the Tribunal” a document setting out a narrative of various alleged incidents that occurred between April 14, 2011 and the date of his termination. The applicant claims in this Request that the document “adds the timelines and dates of conversations with management” regarding his supervisor and others. The Tribunal will treat the applicant’s Request as a Request to amend his Application.
4The respondent has not filed a formal Response to the applicant’s Request. By letter dated September 24, 2012, the respondent’s counsel objected to the filing of the document attached to the Request but provided no reasons for the objection.
5In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
6Having carefully reviewed the narrative attached to the applicant’s Request, it appears that the narrative attached to his request merely provides particulars of the allegations contained within his Application. I note that the respondent submitted in its Response that the application lacked particulars and that the respondent would require those particulars to be provided. In my view, the narrative attached to the applicant’s September 21, 2012 Request provides particulars that were lacking in his Application. Much of the information contained in the narrative relates directly to the incidents and allegations contained in the Application. Other information, such as the information relating to the applicant’s medical condition and any requests for accommodation, is information that the Tribunal would have sought in the hearing of this Application. In my view, the close nexus between the narrative and the allegations set out in the Application militates in favour of granting the applicant’s Request.
7The timing of the applicant’s Request does cause some concern since it was made quite some time after his Application was filed and approximately one month after the mediation in this case. However, the hearing for this Application is not scheduled until July 16, 2013. Also, the respondent has not yet made the disclosure required under the first stage of the process set out in Rule 16 of the Tribunal’s Rules. The second stage of disclosure in which the parties must disclose witness statements and documents they intend to rely upon at the hearing is not scheduled until June 3, 2013. In these circumstances, I find that any prejudice to the respondent arising from the timing of the applicant’s Request can be remedied by permitting the respondent to file an amended Response to respond to the amendments made to the Application.
8In the circumstances, I exercise my discretion to grant the applicant’s Request to amend his Application. The Application is amended to add the narrative attached to the applicant’s September 24, 2012 Request. The respondent will be permitted to file an amended Response within the timeframe set out at the end of this Interim Decision. The applicant will also be permitted to file a Reply to this amended Response.
Applicant’s December 19, 2012 Request
9In his December 19, 2012 Request, the applicant sought production of the following documents “cell phone records 2008 on; pay stubs 2008 on; contract of employment 2008; incident report 2011.” In answer to the question which asks for the reason for the Request, the applicant answered “to get to the truth of the (sic) and to have evidence on hand”.
10The respondent did not file a Response to this Request.
11At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. It is the requesting party who has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, there must be a nexus between the sought-after material(s) and the subject-matter of the Application. The Tribunal in McKay, above, explained the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:
The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law... A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence.
12In his Request, the applicant did not explain why any of the documents requested are arguably relevant to the allegations of discrimination contained in his Application. While it may be that some of the documents sought are arguably relevant to his Application, I am not prepared to make this determination without some explanation from the applicant as to why the documents are arguably relevant to the allegations of discrimination contained in his Application.
13Also, as noted above, the respondent has not yet made the disclosure of arguably relevant documents required under Rule 16.1 of the Tribunal’s Rules. I address this failure to comply with the Tribunal’s Rules in the next section. It is possible that any arguably relevant documents sought by the applicant will be disclosed by the respondent as part of its disclosure of arguably relevant documents under Rule 16.1 of the Tribunal’s Rules. In the circumstances, the applicant may renew his production Request after the respondent has complied with its disclosure obligations. However, he should be prepared to explain why the documents he is seeking are arguably relevant to the hearing of his Application. In particular, he should explain the nexus or connection between the documents sought and the allegations of discrimination contained in his Application.
Respondent’s Failure to Comply with Disclosure Obligations
14In the Notice of Confirmation of Hearing issued on November 28, 2012, the Tribunal advised the parties of the deadlines by which they were required to fulfill their disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules. The Tribunal advised the parties that they were required to disclose all arguably relevant documents in the party’s possession to the other party by December 19, 2012. It appears that the Respondent has failed to comply with this disclosure obligation since no Statement of Delivery (Form 23) was filed with the Tribunal.
15The respondent is directed to comply with its disclosure obligations under Rule 16.1 within 21 days of this Interim Decision.
Representation of Applicant
16The respondent’s counsel advised that the applicant has informed him that he is being represented by the Human Rights Legal Support Center. The respondent’s counsel seeks confirmation of the name of the applicant’s counsel so that documentation and correspondence may be properly sent to the applicant’s counsel. Under Rule 1.21 of the Tribunal’s Rules, parties must deliver documents to another party’s representative if they have one. The applicant has not advised the Tribunal that he is now being represented by the Human Rights Legal Support Center or any other representative. The applicant shall advise the Tribunal and the respondent if he becomes represented by legal counsel or any other representative. Unless and until such time as the applicant advises the Tribunal and the respondent that he is represented, the respondent shall continue to deliver all documents and correspondence to the applicant personally.
order
17The Tribunal orders as follows:
a. The applicant’s Application is amended to include the narrative attached to his September 21, 2012 Request.
b. The respondent is permitted to file an amended Response. It shall file its amended Response with the Tribunal, delivered to the applicant, within 21 days of the date of this Interim Decision.
c. Within 21 days of this Interim Decision, the respondent shall deliver to the respondents a list of all arguably relevant documents relating to the matters raised in the amended Application that are in its possession and a copy of each document. The respondent shall also file a Statement of Delivery (Form 23) with the Tribunal confirming delivery of the list and documents.
Dated at Toronto, this 25th day of March, 2013.
”signed by”
Jo-Anne Pickel
Vice-chair