Leslie Ramos v. 7154291 Canada Inc. o/a Swiss Chalet and Cara Operations Limited, 2014 HRTO 280

Human Rights Tribunal of Ontario

B E T W E E N:

Leslie Ramos

Applicant

-and-

7154291 Canada Inc. o/a Swiss Chalet and

Cara Operations Limited

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: March 4, 2014

Citation: 2014 HRTO 280

Indexed as: Ramos v. 7154291 Canada Inc. o/a Swiss Chalet

Introduction

1This Interim Decision makes orders and provides directions in advance of the hearing of this matter scheduled for March 17-19, 2014.

Production of documents

2On January 20, 2014, 7154291 Canada Inc. o/a Swiss Chalet (“Swiss Chalet”) requested production of certain documents from the applicant. Specifically, Swiss Chalet requested the following documents:

a. The counselling notes and records of Toronto Police Victim Services relating to Ms. Ramos;

b. The statement provided to Toronto Police by a friend of Ms. Ramos;

c. The list of courses to become a supervisor allegedly provided to Ms. Ramos by the managers of Swiss Chalet;

d. The certificate which Ms. Ramos claims to have obtained for her course work;

e. All text messages which Mr. Ghotra allegedly exchanged with Ms. Ramos;

f. Ms. Ramos’ cell phone records of her alleged phone calls with Mr. Ghotra, Cathan Kulkarni, and Robin Uppal from August 2010 to May 2012, inclusive.

g. Ms. Ramos’ cell phone records of her alleged phone calls to her boyfriend on the night she claims to have been assaulted in the condominium by Mr. Ghotra; and

h. Any entries which Ms. Ramos made in her diary or elsewhere in relation to the alleged incidents.

3The applicant’s counsel advised that the applicant has taken steps to obtain the documents referred to in (a) and (b) above from Brampton Police Services. According to his e-mail dated February 28, 2014, “it is unclear when they will be forthcoming”.

4With respect to the documents listed in paras. (c) and (d), the applicant’s counsel advised that these documents are in the possession of the respondent Cara Operations Inc. and that he has requested the documents from its counsel.

5The Tribunal issued an Interim Decision ordering production of the text messages and phone records set out in paras. (e) to (g) above. Counsel for the applicant has advised the Tribunal that her cell phone provider does not keep, or no longer has, the records and information sought by Swiss Chalet.

6With respect to the documents referred to at para. (h) above, the applicant’s counsel advised that the applicant did not keep contemporaneous notes of the events in question. He claimed that any notes made prior to filing the Application were covered by litigation privilege.

7In light of the above, the documents referred to in paras. (a), (b), (c) and (d) appear to remain outstanding.

Adjournment not appropriate

8In his February 28, 2014 e-mail, the applicant’s counsel indicated that Swiss Chalet had indicated that it might seek an adjournment of the hearing due to these outstanding production issues. He indicated that the applicant and Cara Operations would consent to an adjournment.

9However, I am not prepared to adjourn this three day hearing. In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660 at paragraph 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

10The Tribunal has booked three hearing days for his Application. In determining how best to proceed in this case, I must not only take into account the parties’ interests but also the Tribunal’s institutional interest in managing its resources. What may not be readily apparent to the parties is that every adjournment causes a loss of hearing days which not only affects the Tribunal but also affects other parties who must wait longer to have applications heard. The Tribunal receives numerous requests for adjournments due to the failure of parties to make the required production of documents on schedule. If all of these adjournment requests were granted, parties to applications would have to wait considerably longer to have applications heard and decided by the Tribunal. This would lead to a gradual decline in the effectiveness of human rights adjudication and enforcement in the province over time.

11In my view, an adjournment of all three days would not be appropriate in this case. The outstanding production issues, if not already resolved, can be dealt with on the first hearing day. As well, subject to the parties’ submissions, it would seem that at the very least the Tribunal could proceed to hear the applicant’s evidence in chief and evidence from her witnesses. The Tribunal will receive the parties’ submissions on these issues on the first hearing day.

Pre-hearing Disclosure

12The applicant and both respondents are directed to make the pre-hearing disclosure of documents and witness statements required under s. 16.2 and 17 of the Tribunal’s Rules of Procedure (“Rules”) by Tuesday March 11, 2014. This pre-hearing disclosure was due January 31, 2014 and none of the parties in this case complied with their disclosure obligations. While there remain issues relating to the production of documents between the parties, this does not affect the parties’ ability to make their pre-hearing disclosure as required under the Tribunal’s Rules. The Tribunal will permit the parties to supplement this disclosure, if necessary, once the production issues between them are resolved.

Mediation-Adjudication

13The Tribunal directs the parties’ attention to Rule 15A of the Tribunal’s Rules which provides:

15A.1 With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.

15A.2 Where the parties agree to mediation-adjudication, they must sign a mediation-adjudication agreement before the mediation commences.

14If the parties are interested in attempting to settle the case through mediation-adjudication at the outset of the first hearing day on March 17, 2014, they shall advise the Tribunal of such an interest either prior to or at the outset of the hearing.

orders/directions

15In light of the above, the hearing will proceed as scheduled. At the outset of the hearing, the Tribunal will hear the parties’ submissions on how best to proceed, taking into account the parties’ interests, as well as the Tribunal’s institutional interest in resolving applications in a fair, just and expeditious manner. The applicant and her witnesses should be available to testify on the first day.

16The Tribunal further orders as follows:

a. The parties are directed to make the pre-hearing disclosure required under Rules 16.2 and 17 of the Tribunal’s Rules by Tuesday March 11, 2014.

b. The applicant shall contact Brampton Police Services to determine when the police documentation will be produced to her. She shall advise the Tribunal and the respondents in writing by Tuesday March 11, 2014 whether these documents will be produced in time for the hearing and, if not, when they are expected to be produced.

c. As part of its pre-hearing disclosure, Cara Operations shall produce the list of courses to become a supervisor allegedly provided to the applicant by the managers of Swiss Chalet and the certificate which Ms. Ramos claims to have obtained for her course work if it has these documents in its possession or control. Cara Operations shall advise the Tribunal and the other parties in writing if it does not have these documents within its possession or control.