HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nick Pace
Applicant
-and-
Watson Building Supplies Inc.
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed As: Pace v. Watson Building Supplies Inc.
1A hearing in respect of this Application is scheduled for April 14 and 15, 2014, in Toronto. This Interim Decision addresses a Request for Order During Proceeding seeking production of documents and an order that the applicant produce witness statements.
Background
2The Application was filed May 10, 2013. The Application alleges discrimination in employment on the basis of disability. The applicant alleges that the respondent terminated his employment because the respondent was of the opinion that he could not perform his duties due to disability. The applicant states that at no time did he express an opinion that he could never return to his duties. As a remedy, the applicant seeks, among other things, reinstatement, two years’ termination pay, and medical benefit coverage.
3A Response has been filed denying the allegations. Among other things, the respondent alleges that following a shoulder injury in 2012, the respondent accommodated the applicant but that the applicant failed to provide medical documentation to substantiate his absence, to outline his restrictions and/or limitations, and to provide the respondent with a return to work date. It would appear from the Response that the applicant left work in August 2012 and remained off work until his termination. The respondent alleges that the applicant deliberately refused to cooperate with it in its efforts to accommodate the applicant’s absence from work.
4On October 4, 2013, a Notice of Hearing was issued. The Notice outlined the prehearing disclosure requirements. Under Rules 16 and 17 of the HRTO’s Rules of Procedure, the parties were obliged to provide the following things to one another and to the Tribunal by no later than February 28, 2014:
a. a list of the witnesses they intend to call at the hearing of the Application;
b. witness statements describing what the witnesses will say when they testify; and
c. a list and copies of the documents they intend to rely upon at the hearing.
5The Notice provided that the witness statements should be detailed and set out in full the testimony that the witness will give, and that a witness statement should be filed for the applicant if he intends to testify.
6At the request of the parties, the deadline for filing disclosure was extended to March 7, 2014.
7On March 5, 2014, the applicant filed a list of arguably relevant documents and witnesses (identifying a single witness requiring an interpreter). The applicant failed to file copies of the documents listed, although it would appear that the documents were previously filed by either the applicant on February 28, 2014, or by the respondent in its disclosure. The applicant did not file a witness statement for the person identified on March 5, or for himself.
8On March 7, 2014, the respondent filed its documents and witness statements along with a Request for Order During Proceeding seeking witness statements from the applicant and production of the applicant’s income tax returns for the years 2012 and 2013 (as soon as it becomes available) and “any documentation of any type whatsoever which indicates any amounts of compensation, income or other benefits the applicant may have earned in the years 2012 and 2013”.
9On March 10, 2014, the applicant sent a letter to the Tribunal to “clarify matters” included in the correspondence of March 7, 2014. The applicant states that he is no longer presenting any witnesses although “Naturally, the applicant will be a witness”. The applicant states that the respondent never requested the applicant’s tax returns and hence they were not included in the List of Documents. The applicant states that there is no need for the applicant to rely on them and the respondent is not allowed to go on the “proverbial fishing expedition”.
Decision on the Request
10Under Rule 17, every party must deliver a witness list to every other party including a brief statement summarizing each witness’ expected evidence. As set out in the Notice of Hearing, this includes a witness statement for the applicant or, if the applicant’s evidence is fully set out in the application, the witness statement can simply confirm this will be the evidence.
11I find that the narrative of the Application is sparse in details. Further, although the applicant filed a Reply, for the most part it is limited to a denial of the Response without an alternative version being provided. Given the foregoing, I do not find that it would be sufficient for the applicant to simply confirm that his evidence is as set out in the Application and Reply. Instead, in order to have a fair just and expeditious hearing, I direct the applicant to file a witness statement setting out his expected evidence of the events that led to his termination from employment along with any other evidence he intends to present in support of the Application.
12In light of the applicant’s correspondence of March 10, the Tribunal will assume that the applicant is the only witness for the applicant and cancel its arrangements for an interpreter for the witness initially identified.
13With respect to the Request for production of documents, I do not view the request for income tax records as a “fishing expedition”. The applicant is seeking a remedy including compensation inclusive of termination pay and benefit coverage for two years. Documentation related to the compensation, income and benefits the applicant actually received in 2012 and 2013 is relevant to the issue of what losses in compensation and benefits the applicant actually experienced in those years. In the circumstances, the applicant is directed to produce his income tax returns for 2012 and 2013, if available.
14With respect to the request for “any and all other documentation…indicating amounts of compensation, income or other benefits” the applicant may have earned, I direct the parties attempt to reach agreement on the documents to be produced. Subject to addressing any objections, it would appear that documentation related to compensation, income and/or benefits received by the applicant in the applicable period is relevant. If the parties cannot agree on the additional items to be produced, the respondent shall renew his Request for Order During Proceeding by March 24, 2014 particularizing the actual documents requested and the applicant shall file its response by March 27, 2014.
15The Tribunal directs:
By March 18, 2014, the applicant shall file a witness statement setting out his expected evidence of the events that led to his termination from employment along with any other evidence he intends to present in support of the Application;
By March 18, 2014, the applicant shall produce his income tax returns for 2012 and 2013 if available;
The parties shall attempt to agree to the other documentation to be produced by the applicant;
Absent agreement, by March 24, 2014, the respondent shall renew his Request for Order During Proceeding particularizing the actual documents requested that remain outstanding; and
By March 27, 2014 the applicant shall file any response.
Dated at Toronto, this 11th day of March, 2014.
“Signed by”
Kathleen Martin
Vice-chair