Austin v. Americana Resort Inc., 2014 HRTO 1153

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Austin

Applicant

-and-

Americana Resort Inc.

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: July 31, 2014

Citation: 2014 HRTO 1153

Indexed as: Austin v. Americana Resort Inc.

1This is an Application filed pursuant to section 34(1) of the Human Rights Code R.S.O 1990, c. H.19, as amended (the “Code”) alleging discrimination in the provision of goods and services on the basis of disability. A hearing in this case is scheduled to begin on October 31, 2014 in St. Catharines.

2On July 9, 2014 the applicant filed a Request for Order During Proceeding (“Request”) seeking the production of documents from the respondent. The applicant asserts that the respondent has failed to comply with Rule 16 which requires the parties to deliver to each other all arguably relevant documents in their possession. The Notice of Hearing issued to the parties on May 13, 2013 directed the parties to make this production before June 3, 2014. The applicant asserts that he has received nothing from the respondent and has written to them twice in an attempt to get production of the respondent’s documents.

3The Tribunal’s Rules 16.4 provides as follows:

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.

4Further Rule 5.6 and 5.7 also provides as follows:

1.6 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

1.7 Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

6The applicant’s Request is granted.

7The Notice of Hearing summarized the respondent’s obligations as follows:

By June 3, 2014, you must send the other parties a copy of all documents you have in your possession that may be relevant to the issues raised in the case, except documents that are privileged. You must send the HRTO a completed Statement of Delivery (Form 23) confirming that you sent the documents to the other parties. Do not send the documents to the HRTO at this time.

If the disclosure date has passed and you believe the other party has not disclosed documents that may be relevant, you should write to the other party to ask for the documents.

A party that does not believe that a requested document should be disclosed may refuse. Then, the party that wants the document disclosed can file a Request for Order During Proceedings (Form 10) asking the HRTO to order disclosure and the other party can respond. The HRTO will make a decision on whether the documents need to be disclosed. If you need to ask for a disclosure order, you should do so as soon as possible so there is time for the HRTO to make a decision well before the hearing.

8In C.D. v. Wal-Mart Canada, 2010 HRTO 426, the Tribunal explained the importance of the early and prompt production of documents, 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.

8The Tribunal’s Rules 16.4 provides as follows:

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.

9Further Rule 5.6 and 5.7 also provides as follows:

5.6 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

5.7 Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

Directions

10The respondent is directed to immediately deliver the materials required under Rule 16 and if the respondent has not done so within 7 days of the date of this interim Decision outlined in Rule 16 and Rule 5, including not permitting the respondent to rely on any documents or call any witnesses at the hearing.

11I am not seized of this case.