MM v. Great Wolf Lodge Niagara Falls, 2016 HRTO 380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

BM, as represented by his Litigation Guardian, MM

Applicant

-and-

Great Wolf Lodge Niagara Falls and The Jim Pattison Group

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: March 22, 2016

Citation: 2016 HRTO 380

Indexed as: MM v. Great Wolf Lodge Niagara Falls

WRITTEN SUBMISSIONS

BM, as represented by his Litigation Guardian, MM, Applicant

Lorin MacDonald, Counsel

Great Wolf Lodge Niagara Falls and The Jim Pattison Group, Respondents

Dan McDonald, Counsel

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1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to goods, services and facilities because of disability. The applicant's litigation guardian alleges that the respondents discriminated against her son by refusing to let him use a water slide during their stay on April 10, 2015.

2This Interim Decision addresses a Request for an Order filed by the respondents on March 2, 2016 seeking production of certain documents as well as the applicant's request to extend the deadline for compliance with Rules 16.2, 16.3 and 17 of the Tribunal's Rules of Procedure (the "Rules").

The Production Request

3The respondents submitted that it is aware that the applicant canvassed representatives of the Technical Standards and Safety Authority ("TSSA") for information of arguable relevance in this proceeding. The respondent submitted that this correspondence and any information from the TSSA and its agents is clearly arguably relevant and should be disclosed.

4The respondents also submitted that it is aware that the applicant canvassed other parents of children with disabilities for information regarding the respondents' accommodation practices. The respondent submitted that it is also aware that the applicant is posting and receiving information in relation to this proceeding on social media. The respondent submitted that the applicant's representations and responses to her representations on social media should be produced to "avoid trial by ambush". The respondents submitted that the applicant cannot be permitted to collect evidence on social media and use it in this proceeding without disclosing it. The respondents also submitted that the representations on social media are probative of the credibility of the applicant's parents, who are expected to be his primary witnesses.

5The applicant filed a Response to a Request for an Order on March 16, 2016 opposing the request. The applicant submitted that he has provided the respondent with all of the communications between the applicant's father and the TSSA and that there are no other documents to produce regarding communication with the TSSA.

6The applicant submitted that his parents have posted nothing on public social media in relation to the incident on April 10 and 11, 2015. The applicant states that his parents are members of a private support group on Facebook, THREE TO BE Parent Advocacy Link ("PAL"). The applicant states that the applicant's mother communicated with their PAL online support group while at Great Wolf Lodge during the incident in question and since April 2015. The applicant states that all posts were deleted in June/July 2015 and February 2016. The applicant states that his parents have not made any posts regarding the incident in question on any other online groups or on their personal social media sites.

7The applicant submitted that PAL is a private forum and that his parents' communications in that forum are confidential and should not be disclosed to the respondents. The applicant submitted that it is inappropriate to compel disclosure of confidential communications from non-parties, particularly in the absence of their ability to make representations on their own behalf. The applicant submitted that the Tribunal may refuse disclosure when the information is of little importance to the litigation and disclosure may amount to a serious invasion of privacy. The applicant submitted that the respondents' concern about a "trial by ambush" is without foundation. The applicant submitted that it has not produced the documents it intends to rely upon in this matter, and, accordingly, the respondents' concern is pure speculation. The applicant denied that he intends to rely on "similar fact evidence" without first disclosing it.

Analysis and Decision

8At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. "Arguable relevance" is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.

9The applicant asserts that he produced all of the communications with the TSSA, and, at this point, I have no basis for doubting that assertion.

10The respondents' concern is that the applicant's parents have employed social media to gather evidence in support of this Application and may use such information in this proceeding. To the extent the applicant's parents have used social media, on whatever site or forum, to gather evidence to advance the applicant's position in this Application, their inquiries and the responses they received are arguably relevant and should be disclosed. I do not agree that anything the applicant's parents may have communicated in general regarding this Application on social media is arguably relevant and in my view this aspect of the respondents' request is overly broad.

11I agree with the applicant's submission that the respondents' concern about a "trial by ambush" is unfounded. As the respondents' themselves noted, the Tribunal requires parties to file the documents they intend to rely upon prior to hearings to avoid surprise and there is simply no basis for the suggestion that the applicant intends to rely on documents he has not disclosed in advance.

Deadline for Pre-hearing Disclosure

12The deadline for disclosure pursuant to Rules 16.2, 16.3 and 17 was March 8, 2016. By letter dated March 2, 2016, the Tribunal granted the applicant's request to extend this deadline and the deadline was extended for both parties to March 22, 2016. By e-mail message dated March 21, 2016, the applicant requested a further extension to this deadline, until March 29, 2016, because additional time is needed to file an expert report. The respondents responded to the request in an e-mail dated March 21, 2016 and a letter dated March 22, 2016.

13In its e-mail of March 21, 2016, the respondents opposed the request and submitted that extension of the deadline would prejudice the respondent's right to a fair hearing. The respondents submitted that the requested deadline is well beyond the deadline contemplated in the Rules. The respondents further submitted that it may need to request further production of documents as a result of the applicant's expert report and may be required to call its own expert to rebut the applicant's expert. The respondents requested that the Tribunal schedule a case management conference call to address these issues. In their letter of March 22, 2016, the respondents submitted that they have prepared all of its material for disclosure pursuant to its pre-hearing obligations. The respondents submitted, however, that it would be unfair for the respondents to file its witness statements before the applicant discloses his expert report, as the witness statements could be used by the applicant's expert.

Analysis and Decision

14This matter has been scheduled for a single day of hearing on April 22, 2016. Given the complexities of the case, there is no prospect, barring settlement, that the hearing will conclude in one day and the applicant may well not complete his case in one day. Accordingly, if the matter is heard on its merits, continuation dates will be required and the respondents will have ample time to retain experts, if necessary. The issue is in any event speculative, since the respondents will not know if they need to take additional steps until the applicant's expert report is disclosed. The respondents' point about disclosing its witness statements before the applicant produces his expert report is valid, but is addressed by Tribunal's practice of granting any extension to a deadline to all parties, as it has twice done previously in this proceeding. While a second extension to the deadline for compliance with Rules 16.2, 16.3 and 17 is not ideal, it is not unprecedented and is hardly an indication that the litigation of this matter is "getting out of control" as respondents' counsel submitted. In these circumstances, I find it appropriate to grant the applicant's extension request. I am not convinced that a case management conference call is warranted at this point.

Order

15The Tribunal orders as follows:

1. By the end of business on April 4, 2016, the applicant shall disclose to the respondents any inquiry and any response his parents have made or received on any social media site or forum for the purpose of gather information or evidence regarding this proceeding; and

2. The deadline for compliance with Rules 16.2, 16.3 and 17 is extended for all parties until March 29, 2016.