Whittaker v. Montrade Developments Ltd., 2014 HRTO 150

Human Rights Tribunal of Ontario

B E T W E E N:

David Whittaker

Applicant

-and-

Montrade Developments Ltd., Atlantis Real Estate Corporation, and Eugene McCarthy

Respondents

A N D B E T W E E N:

Linda Whittaker

Applicant

-and-

Montrade Developments Ltd., Atlantis Real Estate Corporation, and Eugene McCarthy

Respondents

INTERIM DECISION

Adjudicator: Ruth Carey Date: January 31, 2014 Citation: 2014 HRTO 150 Indexed as: Whittaker v. Montrade Developments Ltd.

WRITTEN SUBMISSIONS

David and Linda Whittaker, Applicants

Grace Vaccarelli, Counsel

Montrade Developments Ltd., Atlantis Real Estate Corporation, Eugene McCarthy, Respondents

Eugene McCarthy, Representative

1These Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to employment and housing because of disability, marital status, and association with a person identified by a prohibited ground; and reprisal.

2On January 8, 2014, the respondents filed and delivered a Request for an Order During Proceedings (“RFOP”). The RFOP asks for an order dismissing the Applications on the basis that the applicants failed to provide arguably relevant documents by December 19, 2013. In the alternative the RFOP asks that the applicants not be permitted to lead any documentary evidence at the hearing of the Applications. On January 15, 2014, the applicants filed and delivered their Response to a Request for an Order (“RRO”).

3This Interim Decision addresses the respondents’ RFOP of January 8, 2014. For the reasons stated below the RFOP is denied.

Factual Background to the RFOP

4Part of the relevant factual background to the RFOP is that the Tribunal rescheduled the hearing to accommodate the availability of counsel for the applicants.

5On November 28, 2013, the Tribunal issued Notice of Joint Hearing (“the Notice”). The Notice says the Applications are scheduled to be heard in Toronto on June 16, 17 and 18, 2014.

6When the Tribunal sends out a notice of hearing, it takes the opportunity to provide detail to the parties of the Tribunal’s disclosure requirements under Rules 16 and 17 of the Tribunal’s Rules of Procedure. It also calculates the deadlines under those Rules for the benefit of both parties. The Tribunal’s November 28, 2013, Notice of Joint Hearing says that the deadline for the parties to exchange arguably relevant documents under Rule 16.1 is December 19, 2013. This date is based on the date the Notice is issued; Rule 16.1 says the parties are to exchange arguably relevant documents no later than 21 days after the Notice is issued.

7On December 3, 2013, the applicants sent an e-mail to the Tribunal saying:

We are in receipt of the Notice of Joint Hearing scheduled for June 16, 17 & 18, 2014 with respect to the above-noted matters. Unfortunately, [applicants’ counsel] is unavailable on the proposed dates. As such, we have faxed correspondence to the Respondent and have proposed July 21-25, 2014 for the rescheduling of same. Once we have heard back from the Respondent, we will contact you with mutually agreeable dates for the rescheduling of these matter [sic].

8Then on December 13, 2013, the Tribunal received a letter indicating that the parties had consented to new hearing dates of May 27, 28, and 29, 2014. As a result of this letter, the Tribunal issued a new Notice of Hearing on December 30, 2013. As is the Tribunal’s normal practice as described above, the new Notice of Hearing calculated the deadline for exchange of arguably relevant documents as January 21, 2014.

9It is clear from the RFOP that the respondents were under the misapprehension that changing the date for the hearing would not change the deadlines for document production. As can be seen from the wording of Rules 16 and 17 this is not true. The date for exchange of arguably relevant documents under Rule 16.1 is tied to the date of issuance of a notice of hearing. Every time a new notice of hearing is issued the date shifts. The date for productions under Rules 16.2, 16.3, and 17 is tied to the date of the hearing and is calculated as being no later than 45 days prior to the start of the hearing. So every time the date of the hearing is changed those deadlines also shift.

10It would appear from the materials filed by the respondents that the applicants tried to explain this to the respondents. Attached to the RFOP is a letter from the applicants to the respondents. It says:

Further to my voicemail to you, we will file our disclosure as required by HRTO rules and given we are seeking an adjournment, new disclosure dates will follow.

11The respondents’ materials indicate this letter from the applicants was received by it on December 18, 2013.

12Because of the respondents’ erroneous belief that the deadline for exchange of arguably relevant documents would remain December 19, 2013, it delivered to the applicants its Rule 16.1 disclosure on December 19, 2013.

13The applicants subsequently couriered their arguably relevant documents to the respondents on January 21, 2014. The address used by the applicants for its couriered package is the address the respondents provided for service. On January 23, 2014, the material was returned to the applicants. A copy of the outside of the returned package was filed with the Tribunal by the applicants. The Purolator stamp on the package indicates “bad address” and “rec[ipient] wants to sign for this shipment”.

14On receiving the package back from Purolator on January 23, 2014, the applicants immediately re-delivered their arguably relevant documents by regular mail. Also on January 23, 2014, the Tribunal received additional correspondence from the respondents dated January 22, 2104. Their letter states that the applicants’ arguably relevant documents have not yet been received and accuse the applicants of deceit.

Analysis

15The respondents’ materials indicate they wish their RFOP to be dealt with at an in person preliminary hearing. Pursuant to Rule 19.7 it is up to the Tribunal to determine if an RFOP is to be dealt with in writing, in person, or electronically. It is the normal practice of the Tribunal to deal with RFOPs concerning production of arguably relevant documents in writing and I see no reason here to depart from that normal practice.

16The basis for the order requested in the respondents’ RFOP is that:

• The applicants missed their Rule 16.1 disclosure deadline; and
• Because the applicants received the respondents’ arguably relevant documents prior to the respondents receiving the applicants’, the applicants are somehow advantaged over the respondents.

17Rule 16.1 says:

16.1 Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and,

b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

18The Tribunal issued Notice of Hearing for the currently scheduled hearing dates of May 27, 28, and 29, 2014, on December 30, 2013. The Notice of Hearing states on its face the Tribunal considers January 21, 2014, to be the deadline for exchange of arguably relevant documents. The applicants couriered their arguably relevant documents to the respondents on that date and Purolator’s notes indicate delivery was attempted. I would note that the obligation under Rule 16.1 is to deliver documents to the opposing party. The applicants are not responsible for whatever difficulties Purolator encountered. Therefore, I am not prepared to make a finding that the applicants failed to meet their obligation under Rule 16.1.

19If the respondents have not received the mailed copy of the applicants’ arguably relevant documents the option available to them is to file a Form 10 requesting an order for disclosure. I would also note that at the hearing it is up to the presiding adjudicator to make a decision as to whether or not to admit into evidence any documents proffered by the parties.

20With respect to the argument that the respondents are somehow disadvantaged because they delivered their arguably relevant documents first, the respondents’ reasoning is flawed. The purpose of exchanging arguably relevant documents is to help the opposing party prepare their case. The requirement is to exchange everything that could arguably be relevant. The party receiving those documents is then expected to look through them and decide which ones if any it is going to use at the hearing in support of its case. This is a very different requirement than the disclosure obligation under Rule 16.3. Rule 16.3 requires parties to figure out which documents it intends to rely on at a hearing and identify those for the Tribunal and the opposing party.

21As Rule 16.1 requires disclosure of all arguably relevant documents regardless of whether or not the party producing them intends to rely on them at the hearing, there is no advantage or disadvantage to be gained in exchanging them early. The arguable relevance of the documents does not change. The same documents should be produced regardless of whether or not the party is aware of the opposing party’s list of arguably relevant documents.

22For the reasons stated above, the respondents’ RFOP is denied.

DECISION

23The respondents’ RFOP is denied.

24I am not seized.