HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Qin Chen
Applicant
-and-
Midland Food Products Inc.
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Chen v. Midland Food Products Inc.
WRITTEN SUBMISSIONS
Qin Chen, Applicant
Richard Miller, Counsel
Midland Food Products Inc., Respondent
Newton Wong, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The respondent has filed a Response denying the allegations in the Application.
2This matter is scheduled for hearing in Toronto on April 17, 18 and 23 in Toronto.
3This Interim Decision deals with the following issues:
a. The respondent’s Request for documents;
b. The applicant’s letter dated March 8, 2013 in which he seeks that the Tribunal modify the order of proceedings; and
c. Directions to the respondent with respect to its failure to comply their obligations pursuant to the rules to provide detailed witness statements.
Production
4The respondent seeks the production of the applicant’s travel documents and passport from February 2009 until December 31, 2011.
5The applicant opposes this request on the basis that it is not relevant and that the applicant has admitted that he visited China in 2010 and that the respondents can ask questions about his travel during cross-examination.
6I have considered the matter, and I find that some of the materials sought by the respondent are arguably relevant. The applicant has admitted to having left the country during the period of time that he seeks compensation for loss of wages. Therefore, it goes to whether or not that applicant mitigated his damages during this period. Therefore, any documents that would show the length of time that the applicant was out of the country are arguably relevant and I shall order their disclosure.
The applicant’s request
7On March 8, 2013, the applicant wrote to the Tribunal requesting that it direct the respondent to call its case prior to the testimony of the applicant’s doctors, because they are both not available to testify on April 17 and 18, 2013. The applicant should have brought this request on a Form 10, so that the respondent could have had the opportunity to respond to the request. Regardless, of this technical omission, I will deal with the applicant’s request since the Tribunal sought a response from the respondent. On April 3, 2013, the respondent wrote to the Tribunal to advise that it opposes this request.
8I have considered the applicant’s request, and at this time, I do not find that it is appropriate for the respondents to start its case prior to the close of the applicant’s case.
9However, I find that it would be helpful to the Tribunal for all of the doctors to testify on the same day. Therefore the respondent’s medical expert should be prepared to testify on April 23, 2013, so long as the respondent complies with the directions in this Interim Decision, with respect to his/her witness statement which are set out below.
Respondent’s Witness Statements
10On November 9, 2012, the Tribunal issued a Case Assessment Direction which directed the parties to provide their hearing materials by February 15, 2013. The Rules provide that:
16.2 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of documents upon which the party intends to rely; and
b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.
16.3 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:
a) a list of documents upon which the party intends to rely; and
b) a copy of each document contained on the list.
16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.
17.1 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.
17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.
17.3 A copy of an expert witness’ written report, or full summary of proposed evidence, and curriculum vitae must accompany the witness list.
17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.
11In C.D. v. Wal-Mart Canada, 2010 HRTO 426 (“Wal-Mart”), the Tribunal explained, at para. 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.
12The respondent’s witness statements do not comply with the Rules. There is insufficient detail provided in the witness statements, and indeed some witness statements identify no information at all. Further, the respondent has failed to identify the name or the nature of the anticipated testimony of its expert witness.
13In these circumstances, I find that it is appropriate to direct the respondent to immediately comply with its obligations pursuant to the Rules.
Orders
14The Tribunal orders that within 7 days of the date of this Interim Decision:
a. The applicant shall produce to the respondent photocopies, of his passport entries from February 2009 until December 31, 2011, and any copies of any tickets. The applicant must bring his passport to the first day of hearing; and
b. The respondent shall deliver to the applicant and file with the Tribunal detailed witness statements that comply with the directions set out in this Interim Decision and the Rules.
15In the event that the respondent does not comply with the directions set out in this Interim Decision then this may limit the ability of the respondent to call a witness or rely on a document during the course of the hearing in accordance with the Tribunal’s Rules.
Dated at Toronto, this 4th day of April, 2013.
”signed by”
Geneviève Debané
Vice-chair