Chad McLeod v. Vale Inco Ltd. and Claire Parkinson, 2013 HRTO 698

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chad McLeod

Applicant

-and-

Vale Inco Ltd. and Claire Parkinson

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 25, 2013

Citation: 2013 HRTO 698

Indexed as: McLeod v. Vale Inco Ltd.

WRITTEN SUBMISSIONS

Chad McLeod, Applicant

Self-represented

Vale Inco Ltd. and Claire Parkinson, Respondents

Kevin Inwood, Counsel

1The applicant filed this Application on February 16, 2011, alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The respondents filed a Response on December 6, 2011 denying the allegations.

3The parties made various requests for orders during the proceedings and previous interim decisions were issued by the Tribunal. This Interim Decision addresses the applicant’s obligation to provide his arguably relevant disclosure and his request to suspend the hearing.

Background

4On January 3, 2013, the Tribunal forwarded a Notice of Confirmation of Hearing scheduling the hearing into this matter for June 2013. The Notice of Confirmation of Hearing summarized the parties’ disclosure obligations under Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules”).

5The parties agreed to reschedule the hearing and, as such, on January 24, 2013, the Tribunal forwarded a new Notice of Confirmation of Hearing indicating that the hearing into the Application was rescheduled to August 13 and 14, 2013.

6The January 24, 2013 Notice of Confirmation of Hearing summarized that, in accordance with Rule 16.1, the parties were required to exchange all arguably relevant documents in each party’s possession by February 14, 2013.

7Subsequently, the parties consented to allow the applicant to have additional time to file his disclosure materials because the applicant was unable to access his documents located in his matrimonial home where he no longer resided because of marital separation. The parties agreed to an extension until February 27, 2013 for the applicant to provide his arguably relevant disclosure to the respondents.

8On February 26, 2013, the applicant sought a second extension of time to file his disclosure materials on the basis that he was encountering difficulties accessing the files in his matrimonial home. The applicant stated that he would forward a copy of a letter sent by his lawyer to the applicant’s ex-wife and her legal representative in order to prove that that he had requested the documentation.

9The respondents indicated that they would take no position with respect to the applicant’s extension request until the respondents were in receipt of the information the applicant stated he would provide evidencing his inability to access his files.

10Although the applicant stated in the February 26, 2013 message that he would provide a copy of his lawyer’s letter to his ex-wife and her legal representative, the applicant did not forward any such correspondence.

11The Tribunal granted the second extension request based on the erroneous premise that the parties had consented to the additional time. The applicant was given until March 29, 2013 to provide his disclosure materials.

Request for Extension of Time

12On April 1, 2013, the applicant sought a third extension of time to file his disclosure materials again on the basis that he continued to experience struggles with his ex-wife in accessing his files. The applicant requested that the hearing be suspended pending his ability to access his documentation.

13On April 2, 2013, the respondents stated that they opposed the applicant’s request for extension of time. The respondents argue that the applicant has not made any efforts to secure the documentation through alternative means. The respondents point out that some of the arguably relevant disclosure relates to the applicant’s medical condition and that these materials could be retrieved from his medical practitioners. The respondents also argue that the applicant has already been granted a three month extension and has failed to establish that he is unable to fulfill his disclosure obligations. Lastly, the respondents submit that the applicant’s request for an indefinite deferral of the Application is extreme. The respondents assert that they will be prejudiced if this Application is further delayed given that this matter is over two and half years old.

14On April 3, 2013, the applicant responded to the respondents’ arguments and reiterated that he is attempting to acquire the disclosure materials. The applicant submits that his medical records are subject to privilege and that he will provide the lawyer’s letter to his ex-wife only if the Tribunal directs.

Decision

15It appears that the applicant is requesting that the Tribunal postpone his disclosure obligations and adjourn the August hearing dates, as well as hold the Application in abeyance.

16The applicant did not file his request in accordance with the appropriate Tribunal Form and did not provide any supporting documentation to confirm the basis for his requests.

17The applicant has also not specified the duration of time that he is requesting the Tribunal’s process be suspended.

18The applicant’s requests are denied. The Tribunal is committed to the fair, just and expeditious resolution of applications: see section 40 of the Code and Rule 1.1. The Application was commenced in February 2011 and, in January 2013, a hearing into the Application was scheduled for the summer of 2013.

19In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 (at para. 4), the Tribunal stated that in considering adjournment requests, the Tribunal must ensure that public resources are used effectively. For this reason, once a hearing has been scheduled, parties have 14 days from the Notice of a Confirmation of Hearing to consult with each other on alternate dates and to advise the Tribunal if no agreement can be reached. The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments provides that requests to reschedule outside of the 14 days period will be granted only in extraordinary circumstances.

20While I understand that the applicant is experiencing hardship as a result of marital separation, I am not satisfied, based on the scant information provided by the applicant thus far, that his circumstances establish an exceptional basis to justify the granting of an adjournment.

21Further, subject to extraordinary circumstances, the Tribunal generally does hold applications in abeyance. While the Tribunal has discretion with respect to its processes, the purposes for holding a matter in abeyance must be consistent with the Tribunal’s Rules, its mandate and the goals of the Code. The Tribunal is committed to fair, just and expeditious resolution of matters.

22As such, the request to adjourn the hearing and hold the Application in abeyance is denied. The Tribunal process shall continue and the hearing will proceed as scheduled.

23With respect to the applicant’s inability to satisfy his arguably relevant disclosure obligations, the applicant’s deadline for exchanging arguably relevant disclosure has already been twice extended. Pursuant to Rule 16, 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 Confirmation of Hearing and copies of documents intended to be relied upon in the hearing are required to be exchanged no later than 45 days prior to the first scheduled hearing day.

24The applicant previously stated that he would provide confirmation from his lawyer of their efforts to secure the materials; however, the applicant has failed to furnish any such proof. The applicant did not provide the respondents with any arguably relevant disclosure in accordance with Rule 16, nor even indicate what documents he believes he may be able to retrieve.

25In this circumstances, the Tribunal directs the applicant to comply with Rules 16 with respect to disclosure of arguably relevant documents by no later than 21 days from the date of this Interim Decision. If the applicant fails to do so, the Application may be dismissed as abandoned.

26The Tribunal may issue further directions and/or schedule further steps regarding any issue in this matter.

27I am not seized.