Speziale v. Royal Canadian Legion Branch #29, 2013 HRTO 86

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rico Speziale

Applicant

-and-

Royal Canadian Legion Branch #29, Norris Piccinato, Robert Bagacki and Robert Boland

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: January 16, 2013 Citation: 2013 HRTO 86 Indexed as: Speziale v. Royal Canadian Legion Branch #29

WRITTEN SUBMISSIONS

Rico Speziale, Applicant Jamie McGinnis, Counsel

Royal Canadian Legion Branch #29, Norris Piccinato, Robert Bagacki and Robert Boland, Respondents Lawrence Phillips, Counsel

1This is an Application filed under s. 34 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 hearing of this matter is scheduled for January 28, 29 and 30, 2013 in Thunder Bay. This Interim Decision addresses the respondents’ request to change the venue of the hearing to Fort Frances and ongoing disclosure issues.

2By Case Assessment Direction (“CAD”) dated January 2, 2013, the Tribunal noted that the respondents had not complied with their pre-hearing disclosure obligations and directed them to file the materials required under Rules 16 and 17 of the Tribunal’s Rules of Procedure within seven days of the date of the CAD. On January 8, 2013, the respondents filed the documents they intend to rely upon at the hearing, pursuant to Rules 16.2 and 16.3 of the Tribunal’s Rules of Procedure (the “Rules”). The respondents indicated that they intend to present four or five witnesses, but have not identified these witnesses, as is required pursuant to Rule 17.1, or provided statements of the witnesses’ expected evidence, pursuant to Rule 17.2.

Change of Venue

3Instead, the respondents asserted that they have had difficulty finding witnesses that are prepared to travel to Thunder Bay from Fort Frances, where the events in question in the Application occurred. The respondents stated that they would have no difficulty producing witnesses if the hearing occurred in Fort Frances, but the witnesses they have identified are not willing to travel to Thunder Bay and the respondents are not willing to subpoena them to attend unwillingly. The Tribunal interpreted the respondents’ position to be a request to change venues and sought submissions from the applicant.

4The applicant filed a letter dated January 11, 2013 setting out his opposition to the change of venue request. The applicant submitted that he has already made arrangements to come to Thunder Bay for the hearing and has met his pre-hearing disclosure requirements. The applicant noted that the Tribunal informed the parties that the hearing would be held in Thunder Bay in the Notice of Confirmation of Hearing, dated May 31, 2012. The applicant submitted that the respondents did not raise the issue of venue in a timely manner. Finally, the applicant submitted that the respondents have not considered alternatives to requiring their witnesses to attend the hearing in person, such as teleconferencing.

Pre-Hearing Disclosure

5The applicant also submitted that the Tribunal should exercise its discretion under Rule 5.6 to refuse to consider any materials or witness statements the respondents may file in the future. The applicant submitted that the respondents are represented by counsel who understands the respondents’ disclosure obligations. Despite this, the applicant submitted the respondents have failed to meet any of their disclosure obligations and have not explained this failure. The applicant submitted that the respondents’ failure to comply with their disclosure requirements may cause the applicant serious prejudice because he is unable to assess whether he has sufficient evidence to counter the respondents’ defence.

Analysis and Decision

Change of Venue

6In the Tribunal’s Practice Direction on Hearings in Regional Centres states as follows:

The HRTO is committed to making its hearings and mediations accessible. The HRTO will hold hearings in the following regional centres: Toronto; Kingston; London; North Bay; Ottawa; Sarnia; Sault Ste. Marie; St. Catharines; Sudbury; Timmins; Thunder Bay; and Windsor.

The HRTO may hold hearings in locations other than the ones listed above in order to accommodate Code-related or other needs of the parties or their witnesses. Any request for a change in location should be in writing and made to the Registrar as soon as possible.

7The respondents did not raise their concerns in a timely manner, as they first complained of the venue when the Tribunal directed them to meet their obligations under Rules 16 and 17 of the Rules. Neither have the respondents identified any Code-related reason for changing the venue to Fort Frances. Rather, they stated that their potential witnesses are not willing to travel to Thunder Bay, but have not indicated why they are unwilling. The applicant opposed the requested change in venue and has arranged to travel to Thunder Bay. In these circumstances, I find that the respondents have not provided sufficient reason to change the venue of the hearing to Fort Frances. The request to change venues is denied.

Pre-Hearing Disclosure

8As noted above, the respondents have not complied with rules 17.1 and 17.2. As noted in the CAD of January 2, 2013, providing witnesses statements is a crucial part of the Tribunal’s processes, which allows the parties to understand the other side’s case. The respondents are directed to immediately file the materials required under Rules 17.1 and 17.2, and if they have not done within seven days of the date of this Case Assessment Direction, the Tribunal may take any or all of the steps in Rule 5, including not permitting the parties to present evidence not raised in their Responses.