Pelletier v. Veolia Transportation/York BRT Services LP, 2014 HRTO 630

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laurence Pelletier

Applicant

-and-

Veolia Transportation/York BRT Services LP

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: May 2, 2014

Citation: 2014 HRTO 630

Indexed as: Pelletier v. Veolia Transportation/York BRT Services LP

1Eight days of hearing have already been held in this matter with the last day of hearing scheduled for May 6, 2014.

2On the last day of hearing, April 4, 2014, and after the respondent’s last witness finished testifying, the applicant’s counsel advised that he had some documentation that he wanted to introduce pertaining to the applicant’s post-employment income. He did not have the documentation with him and he had not previously disclosed it to the respondent’s counsel. Respondent counsel objected to the introduction of the documentation at this point.

3At the hearing I issued the following:

I am not prepared to issue an oral ruling about the admissibility of documentation about the applicant’s post-employment income including EI benefits as such documentation has not been filed with the Tribunal nor even given to the respondent. On the Application, the applicant seeks, as one of his remedies, loss of wages. On the Notice of Hearing dated February 14, 2013, it set outs the disclosure obligations and a Case Assessment Direction (“CAD”) dated July 22 was issued ordering the applicant to comply with his [disclosure] obligations as per Rules 16 and 17 of the Tribunal’s Rules of Procedure.

At the August 15, 2013 hearing date, the applicant testified that he was rushing out of the house and he forgot the documents. I ruled:

The applicant cannot testify at this point, or if he will be permitted to testify at all, further about these points [his post-employment income loss] in the absence of documents being sent to the respondent’s counsel. If the documents are sent to the respondent counsel and filed with the Tribunal, and if the applicant still wants to testify about these issues, then I’ll hear submissions as to whether or not this evidence can be presented and if so the applicant can be recalled specifically about these issues and filing does not mean that it’s admitted before the Tribunal”.

This was issued at the end of the applicant’s examination-in-chief and before cross-examination commenced. At the end of that day, I repeated that the documentation should be disclosed.

Now, after all the respondent’s witnesses have testified, with the final day being scheduled to hear final submissions, is the issue of the applicant’s post-employment income being introduced again.

I direct the applicant to send the documentation to respondent counsel, copying the Tribunal, by Friday, April 4 at 5:00 p.m. and to provide submissions as to the purpose for which the documentation is being introduced, and the reasons why this was not previously introduced.

The respondent has until next Friday, April 11 at 5:00 p.m. to provide submissions with respect to this documentation and its admissibility.

I’ll either issue a determination in writing, issue a Case Assessment Direction, or convene a case management call to address this issue. This does not mean that it is admissible and I’ll need significant submissions about why it was not disclosed.

4On April 4 at 3:42 p.m., the applicant’s counsel emailed some documentation to the Tribunal about the applicant’s post-employment income and his EI benefits. He advised that his submissions would be sent under separate email.

5On April 4 at 4:49 p.m., the applicant’s counsel emailed his submissions. He requested an extension until April 7 to file case law, but did not file anything further on April 7.

6On April 10 at 8:25 p.m., the respondent’s counsel emailed his submissions.

The applicant’s submissions

7The applicant’s counsel submits that the reason why the documentation was not previously produced was that initially his client was self-represented when he started the proceeding. He submits that, “Through inadvertence or over-sight, after I was retained on this matter, I did not canvas T4/income tax issues”. He also submits that based upon the respondent’s disclosed documentation, it appeared that no one other than the applicant would confirm that the applicant raised his medical condition with the respondent until subsequent documentation was filed by the respondent confirming that it was raised. At that point, the applicant thought his case was stronger.

8The applicant’s counsel also submits that the applicant did not have this documentation with him when he testified, but dropped it off at the applicant’s counsel’s office within a few days. He also submits:

While always intending to file the tax documents, each scheduled hearing day, I arrived and dealt with the witnesses scheduled for that day and at the end of each day, there did not appear to be an opportunity for me to deal with Mr. Pelletier’s documents because each discussion at the end of each day was to estimate time and schedule up-coming witnesses. Through inadvertence or misunderstanding on my part, I mistakenly understood that the filing of the documents was a procedural issue which would be accommodated by the Tribunal and opposing counsel. I was under this impression also because I was not advised or it was not apparent to me that my client could lose the opportunity to file if a particular deadline was missed. I do apologize to the Tribunal and opposing counsel if my misunderstanding causes difficulty.

9The applicant’s counsel submits that there is no prejudice to the respondent by the late filing of the documentation and that the documentation was issued by the Government of Canada and is largely not capable of contradiction or dispute by cross-examination. He suggests that the final hearing day could be used for cross-examination, in addition to final submissions which he does not anticipate will take an entire day. He is prepared to reduce the amount of time allotted for his final submissions so that cross-examination can occur.

10Finally, the applicant’s counsel requested an extension to file any relevant case law with the Tribunal on Monday, April 7. He submits that in light of the timing between the ruling issued at the April 4 hearing and the April 5 deadline, he had been unable to conduct detailed research pertaining to the late disclosure of documents. He did not file any case law subsequent to his April 5 submissions.

The respondent’s submissions

11The respondent submits that the applicant has a history of failing to comply with the Tribunal’s Rules and directions throughout the proceeding, including failing to attend mediation without explanation and failing to comply with his disclosure obligations under Rules 16 and 17 leading up to the hearing, including failing to comply with a Case Assessment Direction issued by the Tribunal directing him to do so.

12Further, the respondent notes that at the end of the second day of hearing, the Tribunal directed the applicant to produce any mitigation documentation that he intended to rely upon before the next day of hearing, and required the respondent to undertake to search for further documentation. The respondent complied with the Tribunal’s direction, but the applicant did not.

13The respondent’s counsel submits that when he sought the applicant’s counsel’s consent to adjourn some of the scheduled hearing dates to accommodate a personal commitment that conflicted with some hearing dates, the applicant’s counsel vigorously opposed it telling him, when respondent counsel asked for him to reconsider, “We selected all the days and booked them as they were required to ensure a timely conclusion. We did not book extra dates for you to waste”. With this response, the respondent’s counsel submits that he made arrangements to ensure his attendance at the hearing on the scheduled hearing dates. When those specific hearing dates arose, and the parties attended, the applicant’s counsel then attended and requested an adjournment of those dates stating that a personal issue had arisen to which he needed to attend. The respondent notes that the applicant’s counsel has also been late in arriving to the hearing, including on April 4 as he was double booked, such that the hearing started late.

14In response to the applicant’s submissions, the respondent notes that the applicant’s counsel has had the applicant’s documents since mid-August 2013, given his concession that the applicant dropped them off a few days after the first day of hearing. It submits that the applicant had not offered any credible explanation for the seven month delay in filing these documents. Further, the applicant’s counsel’s submission that he thought the production of documents was a procedural issue is also not accurate given his presumed knowledge of Rule 16 of the Tribunal’s Rules of Procedure (“the Rules”), as reinforced by Rule A9.2, the CAD, and the Tribunal’s comments to the parties during the hearing.

15While the respondent did produce additional documentation after the hearing started, the respondent submits that it did so upon the Tribunal’s direction, and that it did so in a timely manner.

16The respondent, it submits, is prejudiced if the documents are admitted. Not only would the applicant be cross-examined on the documents themselves, but it would open up an entire new line of questioning about the applicant’s mitigation efforts. Even if the Tribunal admitted the documents and permitted cross-examination, the applicant’s evidence could raise new issues regarding mitigation that the respondent would want to refute or clarify through its own witnesses, which would complicate the proceedings and possibly require the respondent to recall some of its witnesses. This concern is bolstered by questions the respondent’s last witness was asked during cross-examination which suggest that the respondent was trying to hamper the applicant’s efforts to mitigate.

17Further, the applicant’s counsel could have brought the documentation to the April 4 hearing as it ended at 3:00 p.m. and the applicant could have potentially been cross-examined then.

18The failure to produce the documentation will now delay the start of final submissions such that an additional day will be required.

law and analysis

19The relevant rules from the Tribunal’s Rules are Rules A9.2, 5.6, 5.7, 16, and 18.1. They state the following:

A9.2 Individuals representing a party before a tribunal have duties to both the tribunal and the party they are representing. Representatives must provide contact information to the tribunal and be available to be contacted promptly. Representatives are responsible for conveying tribunal communications and directions to their client. Representatives should be familiar with tribunal rules and procedures, communicate the tribunal’s expectations to their client, and provide timely responses to the other parties and the tribunal.

5.6 Where a party fails to deliver material to another party or person as required by these Rules, the Tribunal may refuse to consider the material, or may take any other action it considers appropriate.

5.7 Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 of 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

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.

16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

16.4 No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

18.1 The Tribunal may prepare and send the parties a Case Assessment Direction where it considers it appropriate. The Case Assessment Direction may address any matter that, in the opinion of the Tribunal, will facilitate the fair, just and expeditious resolution of the Application and may include directions made in accordance with any of its powers in Rule 1.6 and 1.7.

20Initially, the applicant was self-represented when he filed his Application in March 2012. However, by July 2012, the applicant’s counsel had written to the Tribunal advising that he was now representing the applicant. The same counsel continues to represent the applicant.

21On February 14, 2013, a Notice of Confirmation of Hearing (“the Notice”) was issued to the parties scheduling the hearing for August 14 and 15, 2013. Within the Notice was information about the parties’ disclosure obligations pursuant to Rules 16 and 17 of the Rules, including deadlines of March 7, 2013 and June 28, 2013. The section “Important Information” contains several warnings, including the warning that a party may not rely or present any document not included on the document list and provided to the other parties and filed with the Tribunal except with the permission of the Tribunal.

22A CAD dated July 22, 2013 was issued by the Tribunal to the parties when the applicant failed to comply with his disclosure obligations under Rules 16 and 17. In it, the applicant was warned that there would be serious consequences for the case if the disclosure obligations were not met, was directed to immediately file his materials required under Rules 16 and 17, and warned that his Application would be dismissed as abandoned if he did not comply. Some documentation was filed with the Tribunal by the applicant, albeit after the deadline, although a witness statement was not.

23Prior to the first day of hearing, the respondent wrote to the Tribunal requesting that the Tribunal dismiss the Application because of the applicant’s refusal or unwillingness to participate in the proceedings, particularly the disclosure obligations under Rules 16 and 17. On the first day of hearing, and after opening submissions had been made, the Tribunal heard extensive submissions from the parties as to whether or not the Application should be dismissed for abuse of process.

24Following the submissions, I issued the following oral ruling:

I am not prepared to rule that the Application should be dismissed for abuse of process…..

It does not appear that there is much explanation, if any, being advanced by the applicant’s counsel for the failure to comply with the March deadline which was set out in the February 14, 2013 notice of hearing, or for the June 28 deadline, which was extended by the Tribunal upon the respondent’s request to July 15. There has been some explanation provided by the applicant’s counsel pertaining to July, and particularly after I issued the CAD, based upon his own personal medical situation, but this does not really address the non-compliance before this point. The applicant did not comply with the July 29 deadline set out in the CAD. However, it appears that the applicant himself is not responsible for the non-compliance.

However, the applicant and his counsel are present at the hearing and three documents have now been filed with the Tribunal, albeit past the deadlines that were established by the Tribunal….

I am not condoning the applicant’s failure to comply with the Tribunal’s Rules and its direction and his failure to file a witness statement, but I agree that the respondent could have anticipated that the applicant would be a witness and that his evidence would be based upon his Application and his Reply. Accordingly, I am prepared to let the applicant testify and his evidence will commence after this oral ruling. I do not see that any prejudice from which the respondent would suffer, if it would suffer any, cannot be alleviated by an adjournment. Accordingly, at the end of the applicant’s examination-in-chief, I’ll hear the respondent’s counsel’s submission on whether an adjournment until tomorrow would be sufficient, or if he requires a longer adjournment to prepare for the applicant’s cross-examination.

I’m prepared to allow in the applicant’s documents that have been filed with the Tribunal, subject to the stipulation that the author of those documents [the applicant’s physician] is not being called to testify…..

25The documents are not admitted and the applicant cannot testify about them. Since the time that the issue about this documentation and evidence was first raised on August 15, 2013, more than seven months have passed and five hearing dates have been held and the applicant’s counsel has, he admitted, had the documents since shortly after the August 15, 2013 hearing date. I do not find the applicant’s counsel’s explanations about why he could not disclose the documentation to the respondent and the Tribunal to be satisfactory. In any event, such documentation was required to be disclosed in accordance with the Tribunal’s Rules prior to the hearing. Pursuant to Rule A9.2, the applicant’s counsel ought to have been familiar with the Tribunal’s Rules. Furthermore, the Tribunal issued a CAD directing the applicant to comply with his disclosure obligations before the hearing when he failed to do so.

26Furthermore, the failure to have this documentation at the hearing, or file it in August 2013, is immediately after the Tribunal dismissed the respondent’s request to have the Application dismissed for abuse of process, which included the applicant’s failure to comply with the Tribunal’s processes and directions. Accordingly, the applicant’s counsel should have been aware that there could be significant consequences for failing to comply with the Tribunal’s directions.

27Mediation discussions that have been held in this matter are held consistent with the principles set out in the mediation-adjudication agreement which the parties have signed. This includes the understanding that the issues discussed are not to be disclosed during the hearing. Some mediation discussions took place on August 14, 2013 and November 12, 2013.

28I also find that the respondent would be prejudiced if the documents were to be admitted and the applicant were to testify about them and his mitigation efforts, beyond what is already in evidence before me. The applicant’s counsel has cross-examined the respondent’s witnesses about documentation in the applicant’s file about his re-employability and employability. If the applicant now testified, after all the respondent’s evidence has been called, about post-termination employment, there is a possibility that some of the respondent’s witnesses, a number of whom do not work for the respondent, being recalled. This would result in additional hearing days.

29The final day of May 6, 2014 was scheduled by the Tribunal in consultation with the parties at the hearing. During the January 20, 2014 hearing, the parties agreed to cancel a February 27, 2014 hearing date so that the last respondent witness could testify on April 3, 2014 and then schedule May 6, 2014 specifically for final submissions. At no time did the applicant raise the possibility of introducing new documentation or being recalled to testify about new documentation or issues.

30Accordingly, the applicant’s request to introduce new documentation and testify about such documentation or matters relating to the documentation is denied. The hearing will proceed on May 6, 2014, as scheduled, with final submissions.