McDonald v. CAA South Central Ontario, 2014 HRTO 1333

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shala McDonald

Applicant

-and-

CAA South Central Ontario

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 10, 2014 Citation: 2014 HRTO 1333 Indexed as: McDonald v. CAA South Central Ontario

WRITTEN SUBMISSIONS

Shala McDonald, Applicant

Roxanne McLeod, Representative

CAA South Central Ontario, Respondent

Julie O’Donnell and Brandin O’Connor, Counsel

1The applicant filed an Application alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). No hearing date has yet been scheduled in the case.

2By Request for Order During Proceedings filed on July 25, 2014, the respondent requested early production of certain audio-recordings surreptitiously made by the applicant during meetings with representatives of the respondent. The respondent submits that these audio-recordings are arguably relevant. It submits that the Tribunal should order early disclosure to assist with an early resolution of the case since the applicant has declined mediation. It also submits that early disclosure is appropriate due to concerns over the destruction of the audio-recordings and due to its inability to determine the nature, extent and quantity of audio-recordings.

3The applicant opposes production at this early stage.

4Under Rule 16, the Tribunal sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

5The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances such as when production is necessary for the respondent to file a Response: see Hashi v. Toronto Transit Commission, 2012 HRTO 869. I find that the respondent has failed to establish the exceptional circumstances necessary for the Tribunal to grant its request for early production. This is not a case where the respondent cannot itself ascertain what was said in the meetings that were audio recorded by the applicant. The respondent’s representatives are fully capable of providing the respondent with information about what they said and did not say in their meetings with the applicant. I also find that the respondents concerns about the destruction of the tapes is misplaced. If the applicant seeks to rely upon the audio-recordings, it is highly unlikely that she will destroy them. Finally, although the applicant has declined mediation, the parties will have the opportunity to take part in a mediation-adjudication at the outset of the hearing if both parties agree to this process.

6I do agree with the respondent that the audio-recordings are arguably relevant and must be produced. However, I find that the respondent has failed to identify any exceptional circumstance to justify production at this early stage. Therefore, the respondent’s request for production is denied as premature. The applicant will be required to produce the audio-recordings as part of her disclosure of arguably relevant documents under Rule 16.1 of the Tribunal’s Rules of Procedure.

7I am not seized.