Longstreet v. Easyfinancial Services, 2015 HRTO 497

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alana Longstreet

Applicant

-and-

Easyfinancial Services

Respondent

INTERIM DECISION

Adjudicator: Kevin Cleghorn

Date: April 20, 2015

Citation: 2015 HRTO 497

Indexed as: Longstreet v. Easyfinancial Services

WRITTEN SUBMISSIONS

) Alana Longstreet, Applicant ) Self-represented ) ) ) Easyfinancial Services, Respondent ) Laura K. Williams, Counsel ) )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2The Application proceeded to mediation on October 7, 2014 and did not resolve. This Interim Decision addresses a Request for an Order During Proceedings (“RFOP”) made by the respondent. The applicant has responded to the RFOP. She has filed documentation to be relied upon at the hearing and/or in response to the RFOP. The matter is scheduled for a hearing on the merits on April 29 and 30, 2015.

Respondent’s Request for Production

3Rule 1 (p) of the Tribunal’s Rules of Procedure states:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may:

p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form;

4Rule 19 of the Tribunal’s Rules of Procedure states, in part:

19.1 A party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of the hearing or by written request.

19.2 Where a request is made in writing, it must be made in Form 10, Request for Order during Proceedings (“Request for Order”) and must be delivered to all parties and any person or organization who may have an interest in the request and filed with the Tribunal.

19.4 A Request for Order (Form 10) must:

a) describe the order requested;

b) contain reasons for the request, including any facts relied on and submissions in support of the request;

c) where the order requested is for production of a document(s) a copy of the party’s written request for the document(s) and the responding party’s response, if any, must be attached to the Form 10;

d) include the documents relied on in support of the request, if any;

e) indicate whether the requesting party wishes the Tribunal to deal with the matter in writing, in person, or electronically; and,

f) indicate whether the consent of another party has been obtained as to any term of the order sought or as to the manner in which the request should be dealt with.

19.6 Unless the Tribunal directs otherwise, parties responding to the written Request for Order, must complete the Response to Request for Order (“Response to Request”) in Form 11 and deliver a copy to all other parties and file it with the Tribunal not later than 14 days after the Request for Order was delivered. The Response to Request must include:

a) the responding party’s position on the order(s) requested and whether the Request for Order should be dealt with in writing, in person, or electronically;

b) identify which facts in the Request for Order are accepted and which are disputed. Where the order requested is for production of documents the responding party must attach the written response to the request, if any;

c) reasons and any submissions in support of the responding party’s position;

d) any additional facts relied on by the responding party; and,

e) include any documents not included in the Request for Order upon which the responding party intends to rely.

19.7 The Tribunal will determine whether a Request for Order will be heard in writing, in person, or electronically and, where necessary, will set a date for the hearing of the Request.

5The respondent is requesting production of an assortment of documents. The order sought is extremely broad in scope. It includes, among other things, production of wage and pay information, including income tax returns and Notices of Assessment from the Canada Revenue Agency and production of all documents relating to any employment searches and/or employment applications made by the applicant.

6The respondent does make a variety of requests for production that clearly involve documentation or information within the possession and/or the knowledge of the applicant. The applicant has responded to the request with production of a variety of materials. I am not inclined to deal with this request in writing any further on the eve of the hearing. I am not satisfied that if any order is made at this time that it would result in timely production of any further documentation in any event. I am unaware as to whether the extent of the documentation provided by the applicant satisfies the respondent. I prefer to hear oral arguments on the issue at the outset of the hearing on April 29, 2015, bearing in mind that production of financial and employment search information generally (which relates to the issue of mitigation of damages) is likely to happen. It is trite to suggest that the applicant is under a duty to mitigate her damages in the ordinary course.

7That being said, it is estimated that two days might be required for the hearing. As such, the scheduling of additional days for continuation of the hearing could consider a realistic time frame for the production of additional documents, if so ordered. To ensure procedural fairness is accorded to all parties, I will hear submissions on the issue of whether, and to what extent, the hearing shall proceed on April 29, 2015 after preliminary argument on the RFOP is heard. The applicant needs to be prepared to call her evidence in support of her claims in the Application, although cross-examination may be deferred until another day depending on the extent to which further production of documents is ordered, if at all. I am mindful of the possibility that the respondent may discern or obtain any additional information from the applicant in the course of cross-examination. The applicant needs to come to the hearing with any additional information and/or documentation that will establish what, if anything, she has done to mitigate her damages in the aftermath of leaving the employ of the respondent. The respondent also needs to be prepared to present its case in all respects.

DECISION

8For all the foregoing reasons, the request for further production of documents, if sought, is adjourned for oral argument to April 29, 2015 at 10:00 a.m. Any additional material which either party intends to rely upon in that regard shall be served on the other party and filed with this Tribunal no later than noon on April 27, 2015.