Marsden v. Halton Condominium Corporation No. 41, 2015 HRTO 907

Anne Marsden

Applicant

-and-

Halton Condominium Corporation No. 41 and

The Active Group

Respondents

Adjudicator: Jo-Anne Pickel

Date: July 9, 2015

Citation: 2015 HRTO 907

Indexed as: Marsden v. Halton Condominium Corporation No. 41

Anne Marsden, Applicant

Self-represented

Halton Condominium Corporation No. 41, Respondent

K.C. Wysynski, Counsel

The Active Group, Respondent

Robert Dowhan, Counsel

1This Interim Decision addresses the Applicant’s Request for Order During Proceedings (“RFOP”) filed on June 12, 2015. In light of the applicant’s request for accommodation, granted by the Tribunal, that she be permitted 21 days before each hearing date free of preliminary issues, I issued a Case Assessment Direction (“CAD”) with bottom line rulings on June 26, 2015. This Interim Decision sets out the full reasons for the rulings contained in that CAD.

applicant’s production request

2The applicant filed her RFOP following the first day of hearings after the respondents provided her with a copy of an additional set of documents they intended to rely upon in the hearing. Some of the additional documents provided by the respondent address an amendment that the Tribunal permitted the applicant to make to her Application in April, 2015. The amendment added an allegation relating to the applicant’s mobility scooter that occurred following the filing of the Application and the Responses in this proceeding. According to the respondents, other documents in their additional book of documents are documents they came across as they searched their records for documents relating to the mobility scooter issue. The respondents stated that they provided the applicant with the additional book of documents on the June 1, 2015 hearing day due to the 21 day period prior granted to the applicant before hearings during which her doctor claims she cannot deal with hearing-related issues.

3In these circumstances, I find that the delivery of the additional documents to the applicant at the hearing is appropriate. However, at the hearing, I advised the parties that the applicant should be given time to review the additional documents between hearing days. I advised the parties that she would be permitted to provide her testimony in relation to the scooter issue and in relation to any additional documents delivered at the hearing on the next hearing day once she had a chance to review the documents.

4In her RFOP, the applicant requested production of the following documents

a. Minutes of all annual meetings and meetings of the Board of Directors of Halton Condominium Corporation No. 41 (“HCC No. 41”) from December 1996- May 2015.

b. A copy of the 2014 Reserve Fund Report for HCC No. 41

c. All correspondence relating to compliance with an electrical safety defect notice referred to in document produced by the respondents

Applicable Law

5It is established law that the test for the production of materials is “arguable relevance”. It is the requesting party who has the onus of establishing that documents are arguably relevant. While “arguable relevance” may not be a high onus for the requesting party to satisfy, it is established law that there must be a nexus between the sought-after materials and the subject-matter of the Application. The Tribunal in McKay v. Toronto Police Services Board, 2009 HRTO 1220 explained the analytical approach to assessing “arguable relevance” as follows, at paragraph 13:

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law... A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence.

6The Tribunal has consistently made clear that it will not grant production requests that are so broad as to amount to a “fishing expedition”. See Lawrence v. Chrysler Canada, 2014 HRTO 1434 and Gridin v. Integrated Technology Ltd., 2012 HRTO 389.

Findings

7As advised in my CAD dated June 26, 2015, the applicant’s production request is denied. I set out brief reasons in my CAD. More detailed reasons are set out below.

a. Minutes of Board meetings

This request is denied. The applicant failed to make her production request in a timely way. The applicant had requested and received copies of the minutes of certain Board meetings from HCC No. 41 some time ago. If she believed that minutes of additional board meetings were arguably relevant, she should have requested production of these minutes in a timely way and certainly before the start of the hearing.

The applicant claimed that the arguable relevance of the requested minutes only became evident to her once she heard the respondents’ position at the June 1, 2015 hearing. However, she has not provided an adequate explanation for why that is so. The respondents’ positions in their opening statements was consistent with the positions they have taken all along in this case. As a result, I fail to see how the arguable relevance of any Board minutes only became evident to the applicant at the June 1, 2015 hearing.

Finally, the applicant provided no basis to support the arguable relevance of the minutes. She has failed to show how all of the minutes from December 1996-May 2015 are arguably relevant to the issues raised in these proceedings. As such, her request must be denied.

b. The 2014 Reserve Fund Report

This request is denied. The applicant did not request this report in a timely manner, nor has she shown that the report is arguably relevant to an issue in these proceedings. The applicant claimed that this document is arguably relevant because she provided evidence in relation to a prior Reserve Fund Report. She stated that she required a copy of the 2014 Report to determine if the evidence she gave at the hearing would have been any different if she had seen the 2014 report.

Contrary to the applicant’s contentions, I do not find that the 2014 Reserve Fund Report is arguably relevant to the issues raised in this Application. All of the issues raised in this Application pre-date this Report except for possibly the mobility scooter issue and no basis has been provided for why the report might be arguably relevant to the mobility scooter issue.

c. Correspondence relating to compliance with an electrical safety defect notice disclosed by the respondents

This request is denied. The respondent HCC No. 41 has indicated that its evidence will be that it made the decision to relocate the applicant’s scooter parking as part of refurbishment plans prior to the electrical safety officer’s investigation in May 2014. The respondent’s position will be that this decision was made before the subsequent report into certain electrical safety deficiencies. Given the position taken by the respondents on this issue, the requested documents are not arguably relevant.

The issue for this Tribunal will be whether the respondents breached the Code with respect to the new mobility scooter parking arrangements provided to the applicant.

8For the reasons set out above, the applicant’s production request is denied.

Request to add witnesses

9The applicant has requested permission to add the following individuals as witnesses: electrical safety officer Bill Clark, and Board members Berlingeri and Parrot. The applicant claims that these witnesses can provide relevant evidence to the electrical safety investigation notice referred to above.

10In light of the respondent’s clarification of its position on the mobility scooter issue and my finding above regarding the issue the Tribunal must determine relating to the mobility scooter, I am not persuaded that any of these individuals have relevant information to provide on this issue or any other issue before the Tribunal in this Application.

mediation-adjudication

11In my June 26, 2015 CAD, I raised the option of pursuing a mediation-adjudication in this matter. I directed the parties to provide their positions on this issue to the Tribunal in writing within 7 days of the date of the CAD. The respondents indicated that they were willing to engage in a mediation-adjudication. However, the applicant advised that she was unwilling to participate in this process. As a result, the Tribunal will continue hearing testimony from her applicant and her witnesses on the second hearing day scheduled for July 20, 2015. If the parties are willing to engage in a mediation-adjudication in the future, they should advise the Tribunal in writing or at the hearing.

REspondents’ Motion to dismiss for no reasonable prospect of success

12At the June 1, 2015 hearing day, the respondents advised that they intend to bring a motion to dismiss all or part of the Application on the basis that all or part of it stand no reasonable prospect of success. The applicant took the position that such a motion should not be permitted as the Tribunal has already addressed this issue.

13HCC No. 41 filed a Request for Summary Hearing around the time that it filed its Response to the Application. The Tribunal dealt with this Request in a CAD dated January 22, 2013. In that CAD, Vice Chair Muir directed that, since the parties had agreed to mediation, the Registrar should schedule a mediation in this case. He stated that the respondent’s request to dismiss all or parts of the Application should be dealt with in the next steps of the Tribunal’s process if mediation was unsuccessful.

14He stated at paras. 4-6 of his CAD as follows [emphasis added]:

The Request for a Summary Hearing is denied at this stage. Although the Tribunal’s Rule 19A provides that no reasons are required when a Request for Summary Hearing is denied, in the circumstances the following comments are appropriate.

I agree with the respondent that significant elements of the Application may well be out of time in the sense of liability of the respondent with respect to issues going back to when the applicant first purchased her unit such as the alleged representation with respect to security cameras. I also observe that the some or all of the allegations with respect to access to the pool may be out of time as the last of them appears to relate to an incident in July 2010 more than one year prior to the Application being filed. There are also substantial questions about when the applicant advised the respondent of her need for the various accommodations she is now seeking. For example the applicant is seeking accommodation in the form of enhanced security measures as a necessary accommodation for an alleged disability, but the applicant conceded that she did not advise the respondent of this for some period of time and maybe not until sometime in 2010. I would observe at this point that the respondent can not be responsible for an alleged failure to accommodate a disability that they were not made aware of.

However it does appear to be the case that the applicant’s alleged needs for accommodation and the nature of the accommodations she claims to require have now been identified. While some of these issues appear to have been resolved, it appears that there remain disputes about some of the issues raised by the applicant and which she claims are ongoing. I note that the parties have agreed to mediation. Such issues as remain in terms of the timeliness of some or all of the allegations and whether or not elements of the Application should be dismissed for other reasons including that they may have no reasonable prospect of success are matters that can be dealt with in the next steps of the Tribunal process if mediation does not result in a resolution of this dispute.

15In many cases, the Tribunal must hear evidence from an applicant before it will entertain a motion for dismissal on the basis of no reasonable prospect of success. The Tribunal’s approach to such motions is discussed at length in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”).

16In keeping with the Tribunal’s approach in past cases that have followed Pellerin, I advised the parties at the June 1, 2015 hearing that I would permit the respondents to bring their motion at the close of the applicant’s evidence. The timing for the delivery of any case law in support of the motion and the scheduling of the motion will be determined once the evidence from the applicant and her witnesses is complete.

orders/Direction

17The Tribunal orders as follows:

a. The applicant’s production request is denied.

b. The applicant’s request to call three new witnesses is denied.

c. The Tribunal will continue hearing testimony from the applicant and, if time allows, her witnesses on the second hearing day scheduled for July 20, 2015.

Dated at Toronto, this 9th day of July, 2015.

“Signed by”

Jo-Anne Pickel

Vice-chair```