Human Rights Tribunal of Ontario

B E T W E E N:

Deborah Fay

Applicant

-and-

Independent Living Services, Dan McGale and Dianne Reynolds

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: March 11, 2014 Citation: 2014 HRTO 332 Indexed as: Fay v. Independent Living Services

WRITTEN SUBMISSIONS

Independent Living Services, Dan McGale and Dianne Reynolds, Respondents

Joseph Tascona, Counsel

1On November 15, 2013, the Tribunal delivered a Notice of Hearing to the parties, which informed them that the hearing is scheduled for May 26, 27 and 28, 2014, and summarized their requirement to disclose arguably relevant documents in their possession in compliance with the Tribunal Rules of Procedure as follows:

STEP ONE: Disclosure of Arguably Relevant Documents (Rule 16.1)

By December 6, 2013 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.

2The respondents have complied with Rule 16.1, but, to date, the applicant has not. The respondents have also filed a Request for an Order During Proceeding (“RFOP”), which requested that the Tribunal order the applicant to comply with Rule 16.1. The applicant has not filed a Response to the RFOP.

3The respondents’ Request is granted. The exchange of documents is a critical part of the Tribunal’s process because it ensures that each party fully understands the other side’s case. See C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426 at para. 7.

4I also draw the applicant’s attention to the Tribunal’s comments in paras. 4-7 of Ouwroulis v. New Locomotion, 2009 HRTO 335:

Human rights applications are serious matters. The [Human Rights] Code, which has been described as quasi-constitutional legislation, enumerates our most fundamental rights and responsibilities. The enforcement procedures in the Code provide the opportunity for individuals who believe their human rights have been infringed, to file applications directly with the Tribunal, and have the merits of those claims determined in a timely way. Where the Tribunal finds that an applicant’s rights have been violated, the Tribunal has broad remedial powers, and may award monetary compensation and make orders to ensure future compliance with the Code.

When an individual files a human rights application, they are commencing a legal proceeding that requires a respondent to take immediate steps. The respondent must inform itself about the subject matter of the claim and, except in limited circumstances, file a complete response. This may involve the expenditure of significant resources.

Likewise, the filing of a human rights application engages public resources. The Tribunal expects to receive thousands of applications each year from individuals who believe their human rights have been violated. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all applicants who file applications. Most important, because of the quasi-constitutional nature of human rights, and in furtherance of its statutory mandate, the Tribunal has an obligation to treat each application seriously, and ensure that it is dealt with fairly and expeditiously.

The opportunity for an individual to make a claim of discrimination to a publicly funded adjudicative body, which has extensive procedural and remedial powers, comes with the obligation to respect the seriousness and significance of the process, and comply with the Tribunal’s Rules. The Tribunal’s procedures are less formal than a court’s and aim to enhance access, including for those parties who may be self-represented. But this informality should not be interpreted to mean that parties may take a casual attitude towards complying with Tribunal directions. There may be circumstances which justify a party’s failure to comply with a Tribunal rule or direction. However, an applicant who does not respond to Tribunal directions risks having the application dismissed.

5The Tribunal therefore makes the following order:

• By no later than 5:00 p.m. on Monday, March 18, 2014, the applicant shall deliver to the respondents’ counsel the documents required under Rule 16.1 and file a completed Statement of Delivery (Form 23) with the Tribunal, or confirm in writing to the respondents’ counsel and the Tribunal that the Application and Reply reflect the evidence that will be given by her, and that she will not be relying on any further documents. If the applicant fails to comply with this order, the Tribunal may dismiss her Application.

6I am not seized of this matter.