McDonald v. CAA South Central Ontario, 2015 HRTO 477

Human Rights Tribunal of Ontario

B E T W E E N:

Shala McDonald

Applicant

-and-

CAA South Central Ontario

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 15, 2015

Citation: 2015 HRTO 477

Indexed as: McDonald v. CAA South Central Ontario

WRITTEN SUBMISSIONS

Shala McDonald, Applicant

Self-represented

CAA South Central Ontario, Respondent

Brandin O’Connor, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend her Application to change the monetary remedy sought in the Application. It also addresses the applicant’s request that two of her witnesses testify at specific times on the second day of the hearing. Finally, it addresses the applicant’s production request.

2In her Application, the applicant alleged that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, she alleged that the respondent terminated her employment for discriminatory reasons. In her Application, he sought $50,000 as a monetary remedy as well as public interest remedies.

3The hearing of the Application is scheduled for April 30 and May 1, 2015.

Request to Amend Application

4By Request for Order During Proceedings (“RFOP”), the applicant sought to amend her Application to change the monetary remedy sought to $59,992.

5The respondent consented to this amendment.

6In light of the respondent’s consent, I grant the applicant’s request to amend the remedy sought in his Application. This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Order of Witness Testimony

7In her RFOP, the applicant requested that Veronica Taylor be permitted to testify the morning of May 1, 2015 and that her treating physician be scheduled to testify after 1PM on May 1, 2015.

8The respondent did not oppose having the applicant’s witnesses testify on the second day of hearing. However, the respondent did oppose having other witnesses testify before the respondent has had a chance to cross-examine the applicant. Given the number of allegations in the Application, the respondent submitted that it is unlikely that the applicant’s testimony in chief and cross-examination will be completed on the first day of hearings.

9I find that it is appropriate to accommodate the schedules of the applicant’s medical witnesses if it is possible to do so without interrupting the applicant’s testimony. The Tribunal will at times permit parties to interrupt witness testimony to call other witnesses whose schedules require accommodations. However, in my view, such an approach is inappropriate in a case such as this one. Given the allegations set out in the Application, it is most appropriate, both for the respondent and the Tribunal, to hear all of the applicant’s testimony before hearing testimony from her health care providers.

10Given the number and scope of allegations in the Application, the hearing of this Application will not be completed in two hearing days. Additional dates will be required. The Tribunal may be in a position to hear evidence from one of the applicant’s health care providers on the afternoon of May 1, 2015. However, this will depend on the duration of the applicant’s testimony and cross-examination. It will only be appropriate to hear testimony from Ms. Taylor on the morning of the second hearing day if the applicant’s testimony in chief and cross-examination is complete by the end of the first hearing day.

11I will discuss the order of witness testimony with the parties further at the outset of the hearing, including the possibility of arranging for testimony by video-conference if necessary.

Applicant’s Production Request

12The applicant requested the production of certain e-mails from the respondent. The respondent provided copies of e-mails in an e-mail chain on or around May 1, 2013 between Kelly Watters and Charity Steele. The applicant believes that there was an initial message from Ms. Steele to Ms. Watters on May 1, 2013 and that it is missing from the e-mail chain produced by the respondent. The respondent claims that no further correspondence between Ms. Watters and Ms. Steele could be located for that date.

13The test for the pre-hearing production requests is arguable relevance. The respondent did not take the position that the e-mail was not arguably relevant. Instead, it has claimed that such an email cannot be located.

14In my view, the full e-mail exchange between Ms. Watters and Ms. Steele in or around May 1, 2013 is arguably relevant and must be produced. The respondent is ordered to conduct another search of its e-mail system for any initial e-mail that may have been sent by Ms. Steele to Ms. Watters on or around May 1, 2013.

Mediation-Adjudication

15The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal prior to the first day of the hearing.

Order

16For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the remedy sought in her Application is granted.

b. The respondent is ordered to produce any initial e-mail that may have been sent by Ms. Steele to Ms. Watters on or around May 1, 2013. It must file the e-mail with the Tribunal with a copy to the applicant no later than Wednesday April 22, 2015. If the respondent cannot locate such an e-mail, it must file with the Tribunal, and deliver to the applicant, a letter detailing the extent of its search efforts.