Caldwell v. Windigo Catering Limited Partnership, 2016 HRTO 1343

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Caldwell

Applicant

-and-

Windigo Catering Limited Partnership

(by its general partner, Windigo Ventures General Partner Ltd.)

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 14, 2016

Citation: 2016 HRTO 1343

Indexed as: Caldwell v. Windigo Catering Limited Partnership

WRITTEN SUBMISSIONS

Mary Caldwell, Applicant

Jordan Lester, Counsel

Windigo Catering Limited Partnership (by its general partner, Windigo Ventures General Partner Ltd.), Respondent

Chantelle Bryson, Counsel

1This Interim Decision addresses the respondent’s request to dismiss the Application due to the applicant’s failure to disclose documents that I ordered her to produce in a previous Interim Decision.

2In her Application, the applicant alleged that the respondent discriminated against her in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, she claimed that the respondent failed to provide reasonable accommodations for medical restrictions relating to her allergy to mould.

3In Interim Decision, 2016 HRTO 324, I ordered the applicant to produce the following:

a. all medical records of the applicant’s treating medical professionals from September 2013 to date which relate to her illness precipitating her inability to work for the respondent at the Goldcorp Canada Ltd. Musselwhite Mine site, including records from her family physician, any walk-in clinic practitioners, the Goldcorp Occupational Health Nurse, any emergency room practitioners, allergists and WSIB medical professionals.

b. all employment and income records of the applicant from September 2013 to date including employment agreements and job descriptions, pay stubs, T4 slips, business purchase or share agreements and personal and business income tax returns.

4On May 12, 2016, I held a case management call with the parties to deal with outstanding production issues. On the call, the respondent’s counsel stated that the applicant still had not produced the following documents:

a. Any medical records the applicant relied upon to apply for and receive Employment Insurance (“EI”) illness benefits in 2013-2014.

b. All medical records held by Goldcorp Occupational Health Nurse from September 2013 to June 2014 which relate to the illness that precipitated the applicant’s inability to work for the respondent at the Goldcorp Canada Ltd. Musselwhite Mine site.

c. All T4 slips or underlying income records such as pay stubs that underlie the applicant’s tax return summaries for 2013-2014.

5In the call, the applicant’s counsel advised that he would consult his client to obtain any medical records she relied upon when she applied for EI benefits. He agreed to advise the respondent’s counsel as to whether the applicant did rely upon any such medical records in her EI application and, if so, to provide the records to the respondent’s counsel.

6Counsel for the parties agreed to confer with each other as to how best to proceed in order to obtain the documents referred to in subparagraph 4(b) above from the Goldcorp Occupational Health Nurse.

7The applicant’s counsel agreed to provide the documents referred to in subparagraph 4(c) to the respondent’s counsel, as I found them to be arguably relevant to this case in my previous Interim Decision.

8By Case Assessment Direction dated May 13, 2016, I confirmed the applicant’s obligation, and agreement, to produce the documents listed in paragraph 4 above.

9On September 19, 2016, the respondent requested that the Tribunal dismiss the Application as an abuse of process due to the applicant’s continued failure to produce the documents listed in subparagraphs 4(a) and (c) above. According to the respondent, the applicant refused to obtain the income and EI documentation listed in these subparagraphs.

10The applicant ‘s counsel responded that the applicant has been “unable to locate any medical records relied upon to receive Employment Insurance, nor was she able to locate any T4 or underlying income records for the 2013-2014 tax year.” The applicant’s counsel claims that the applicant has complied with my production order as she does not have any of the requested documents “in her possession”.

findings

11When the Tribunal orders a party to produce documents, it is ordering that party to produce the documents that fall within the scope of the production order that are within that party’s possession, power or control. Rule 16 of the Tribunal’s Rules of Procedure speaks to the proactive disclosure obligations of parties to disclose information in their possession. However, under Rule 1.7 (k), the Tribunal has the power “on the request of a party, direct another party to adduce evidence or produce a witness when that person is reasonably within that party’s control”. Therefore, when the Tribunal is making a production order, as I did in my previous Interim Decision, it is ordering a party to produce all evidence within the scope of the order that is reasonably within that party’s control.

12In this case, the documents listed in subparagraphs 4(a) and (c) above are reasonably within the applicant’s control and she must produce them. In particular, the income information sought by the respondent is available through the Canada Revenue Agency online. The information regarding the applicant’s EI claim should be available through the appropriate federal government agency.

13In my view, it is not appropriate to dismiss the Application as an abuse of process at this stage. However, any unexplained failure by the applicant to access documents that are reasonably within her control may amount to an abuse of process. At the very least, such an unexplained failure may be grounds for an adverse inference against the applicant. Moreover, some of the documents listed in paragraphs 4(a) to (c) may be directly relevant to the applicant’s ability to make out her claim for lost wages.

Order

14Within 14 days of this Interim Decision, the applicant must file with the Tribunal and deliver to the respondent all documents falling within the scope of subparagraphs 4(a) and (c) above that are within her possession, power or control. If she fails to produce any materials falling within these subparagraphs, she must specifically explain why she has not done so and specifically identify the steps she took to obtain these documents.

15Either party will be permitted to add documents to its list of hearing documents after the applicant has complied with the production order above. Any party who wishes to add documents to their list of hearing documents must do so by November 4, 2016.