African Canadian Legal Clinic v. Legal Aid Ontario, 2016 HRTO 1502

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

African Canadian Legal Clinic Applicant

-and-

Legal Aid Ontario Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 24, 2016

Citation: 2016 HRTO 1502

Indexed as: African Canadian Legal Clinic v. Legal Aid Ontario

WRITTEN SUBMISSIONS

African Canadian Legal Clinic, Applicant Lavinia Latham, Counsel

Legal Aid Ontario, Respondent Alix Herber, Counsel

1This Interim Decision addresses the respondents’ request for particulars.

2In the Application, the applicant alleged that the respondent discriminated against it because of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondent discriminated against it during lease expense negotiations in the Spring of 2014.

3The respondent filed a detailed request for particulars in this case. The respondent carefully reviewed each paragraph of the Application and asked a number of questions in relation to the content of those paragraphs. The applicant opposed the respondent’s request, arguing that the Application and Reply are sufficiently detailed. The applicant also argued that the respondent is in effect seeking to engage in something akin to a discovery process which is not provided for by the Tribunal’s Rules of Procedure (“Rule”).

finding

4The Tribunal has held that the purpose of particulars is to define the issues, prevent surprise, to enable the parties to prepare for litigation and to facilitate the hearing process. See McKay v. Toronto Police Services Board, 2009 HRTO 342 at para. 15 and Neusch v. Ontario (Transportation), 2002 CanLII 46508.

5This case remains at an early stage. The hearing has yet to be scheduled and therefore the parties have yet to disclose any materials to each other as required under Rules 16 and 17 of the Tribunal’s Rules of Procedure (“Rules”).

6I agree that most of the detailed questions posed by the respondent are more in the nature of questions that might be posed in an examination for discovery in a civil proceeding. In my view, many of the particulars sought by the respondent may be answered once the parties have made the disclosure required under Rules 16 and 17 of the Tribunal’s Rules. As well, many of the questions raised by the respondent are questions that can be posed to the applicant’s witnesses in cross-examination.

7The applicant will be required to provide a great deal more particulars in its witness statements. With a few exceptions, I find that the particulars provided by the applicant are sufficient at this stage of the Tribunal’s process. If the respondents require further particulars after having received the disclosure required under Rules 16 and 17 of the Tribunal’s Rules, it may renew its request for particulars at a later date.

8The exceptions are the following:

a. At para. 7 of Schedule A to the Application, the applicant alleged that the respondent’s application of the government’s Leasing Guidelines subjected the applicant to overt and adverse effect discrimination. The applicant must confirm whether it is challenging the respondent’s application of the Leasing Guidelines or the Leasing Guidelines themselves.

b. In several paragraphs of its Application and Reply, the applicant referred to instances of differential treatment as compared to other legal clinics. For each instance where it alleged differential treatment, the applicant must identify the legal clinics in relation to which the applicant was allegedly treated differently.

c. At para. 1 of Schedule B to the Application, the applicant stated that it is seeking compensation for injury to dignity and self-respect. The applicant must confirm the amount of compensation it will be seeking for injury to dignity and self-respect.

d. At para. 2 of Schedule B, the applicant stated that it is seeking compensation for out of pocket expenses related to the Code breaches alleged in this case. The applicant must confirm the amount of compensation it will seek as reimbursement for out of pocket expenses and the nature of these expenses

e. At para. 3 of Schedule B, the applicant stated that it is seeking compensation for back rent and future rent expenses “at the very least” equivalent to the funding for rent it received prior to June 30, 2014. The applicant must confirm whether it is seeking more than the funding received prior to June 30, 2014. It must also confirm the period of time for which it seeks compensation for back rent, as well as the quantum it is seeking in this respect and the basis for its calculations.

f. At para. 4 of Schedule B, the applicant stated that it is seeking funding for 3,050 square feet of office space at the March 2014 level. The applicant must confirm the period of time for which it seeks such funding.

g. At para. 6 of Schedule B, the applicant stated that it reserved the right to request additional monetary compensation at a later date. The applicant must confirm whether or not it is seeking such additional monetary compensation. If so, it must provide full particulars relating to this compensation.

h. At para. 7 of Schedule B, the applicant stated that it reserved the right to request additional non-monetary compensation at a later date. The applicant must confirm whether or not it is seeking such additional non-monetary compensation. If so, it must provide full particulars relating to this compensation.

9In addition, I note that at para. 9 of its Application the applicant refers to “a pattern of differential treatment towards the ACLC which started at the outset of the creation of the Clinic and continued throughout the lease negotiation process and persists to this day”. The applicant must confirm whether it will be seeking to raise allegations relating to incidents that preceded the most recent lease negotiations. If so, the applicant must provide full particulars of these allegations and the dates on which the alleged incidents occurred. Once I have reviewed the applicant’s particulars regarding any past differential treatment, I may seek submissions from the parties as to the timeliness of these older allegations.

10In addition, if the applicant is seeking to raise allegations regarding incidents that postdated the Reply filed in this case, it must file a Request for Order During Proceedings (“RFOP”) requesting permission to amend the Application to add these new allegations.

ORDER

11The Tribunal orders as follows:

a. The applicant must provide the particulars required under paras. 8 and 9 above by January 6, 2017.

b. If the applicant intends to raise allegations regarding incidents that postdated the Reply, it must file an RFOP by January 6, 2017.