Faulkner v. Lakeridge Health, 2016 HRTO 143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Faulkner

Applicant

-and-

Lakeridge Health

Respondent

-and-

Ontario Public Service Employees Union

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: February 1, 2016

Citation: 2016 HRTO 143

Indexed As: Faulkner v. Lakeridge Health

WRITTEN SUBMISSIONS

Sandra Faulkner, Applicant

Sydney Hagler, Counsel

1In her Application, the applicant alleged that the respondent discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The hearing of this Application is currently being rescheduled. This Interim Decision addresses the applicant's request to amend the remedy sought in her Application. It also reminds the parties of the upcoming deadline for their pre-hearing disclosure in this case and emphasizes the consequences of failing to make the required disclosure by the deadline set out below. Finally, I also direct the Ontario Public Service Employees Union ("union") to advise the Tribunal, in writing, of the scope of the intervention rights it will be seeking in this case.

Applicant's request to amend application

2By Request for Order During Proceedings ("RFOP") dated December 8, 2015, the applicant requested that the remedy sought in her Application be amended to $486,585.00. She attached to her RFOP, a breakdown of the requested remedy.

3The respondent did not respondt to the applicant's RFOP and the time for doing so has now passed.

4The applicant's request to amend the remedy sought in her Application is granted. 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.

Pre-Hearing Disclosure

5At the initial hearing day in this case, it was agreed that both parties would make the pre-hearing disclosure required under Rules 16 and 17 of the Tribunal's Rules of Procedure ("Rules") by February 12, 2016.

6As documented in previous Case Assessment Directions and in Interim Decision 2015 HRTO 1540, the respondent failed to make the required pre-hearing disclosure prior to the first hearing day. At the first hearing date, the parties agreed that they would make the disclosure required under Rules 16 and 17 of the Rules as follows:

a. The respondent will make the hearing disclosure it should have made prior to the first hearing day. Specifically, the respondent must disclose any and all documents it intends to rely upon at the hearing. It must also file with the Tribunal and deliver to the applicant and union a list of its intended witnesses as well as a detailed witness statement for each of its intended witnesses;

b. The applicant must file a list of witnesses as well as a detailed witness statement for each witness she intends to call at the hearing. The applicant must deliver to the respondent and the union a copy of each of the documents she intends to rely upon at the hearing. The applicant shall also file with the Tribunal copies of any documents she intends to rely upon at the hearing that she has not to date filed with the Tribunal. It is not necessary for the applicant to re-file copies of any documents she has already filed with the Tribunal as part of her pre-hearing disclosure prior to the first hearing day. However, she must file with the Tribunal, and copy to the respondent and union, a list of documents she intends to rely upon at the hearing which includes the date on which she filed each document with the Tribunal; and

c. The applicant and the respondent must file witness statements that are detailed enough for the witnesses to adopt their witness statements at the hearing and only provide any testimony that is necessary to supplement their witness statements and answer questions in cross-examination.

7The respondent and the applicant should take note of Rules 16.4 and 17.4 which state as follows:

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.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

8Any party who does not make the required disclosure by February 12, 2016 will not be permitted to rely upon any documents or present any witnesses except with permission of the Tribunal.

9At the hearing, the parties discussed the applicant's disclosure of a journal she kept of the relevant events in this case. By correspondence dated November 25, 2015, the applicant's counsel advised that the applicant would not be disclosing this journal due to privacy concerns.

10If any production issues remain between the parties, they must file a production request with the Tribunal well in advance of the next hearing date so that any production request can be determined in advance of the next hearing date. The parties should note that any outstanding production issues will not be reason for any failure to comply with the February 12, 2016 pre-hearing disclosure deadline.

scope of Union's Intervention

11The union must advise the Tribunal in writing by February 12, 2016 of the scope of intervention rights it seeks in this case. After having reviewed the union's correspondence, I will determine appropriate next steps for determining the scope of intervention rights that will be permitted.

order and direction

12The applicant's request to amend the remedy sought in her Application is granted. The remedy is changed to $486,585.00.

13Both parties must make the disclosure required under Rules 16 and 17 of the Rules as described more specifically in paragraph 6 above no later than February 12, 2016. Any party who does not make the required disclosure by that date will require my permission before they may (1) rely upon any documents that were not filed with the Tribunal by February 12, 2016 or (2) present any witnesses for which a witness statement was not filed with the Tribunal by February 12, 2016.

14The union must advise the Tribunal in writing by February 12, 2016 of the scope of intervention rights it seeks in this case.