Marentette v. Hamilton-Wentworth District School Board, 2016 HRTO 454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Evelyn Marentette

Applicant

-and-

Hamilton-Wentworth District School Board

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: April 11, 2016
Citation: 2016 HRTO 454
Indexed as: Marentette v Hamilton-Wentworth District School Board

WRITTEN SUBMISSIONS

Evelyn Marentette, Applicant

Jennifer Zdriluk, Counsel

Hamilton-Wentworth District School Board, Respondent

Jane M. Gooding, Counsel

1This is an Application filed pursuant to section 34 of Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination in employment because of sex.

2This Interim Decision determines two Requests for an Order During Proceedings (“Requests”), in which the applicant seeks permission to file a late Reply and an order for production.

3For the reasons that follow, the request to file a late Reply is granted and the production request is denied.

PROCEDURAL BACKGROUND

4On December 16, 2015, the Tribunal issued a Case Assessment Direction (CAD) directing that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed. The Tribunal also indicated that the summary hearing would address the timeliness of some of the applicant’s allegations which may be outside of the Tribunal’s jurisdiction. The summary hearing is scheduled to be heard on April 14, 2016.

5In the CAD, the Tribunal noted that the applicant did not file a Reply and that the time for doing so had passed. The Tribunal also set deadlines for submissions and documents to be filed in advance of the summary hearing.

6Two weeks after the respondent’s documents were delivered in accordance with the timeline set out in the CAD, and after retaining new counsel, the applicant requested an extension to file summary hearing documents. The Tribunal granted the extension and the applicant filed her summary hearing documents, her Requests and a proposed Reply.

7The applicant submits she inadvertently failed to submit a Reply when she was represented by previous counsel. The respondent opposes the Request for various reasons, including that it would be prejudiced were the Tribunal to accept the late Reply after the respondent’s summary hearing materials have already been delivered.

8With respect to the Request for production, the applicant argues that the Tribunal should order early disclosure of relevant documents when a summary hearing is ordered that may end the application, particularly where the application relies on circumstantial evidence that may be in the possession of the respondent. The respondent opposes the Request on the grounds that extensive productions have already been provided and that no exceptional circumstances warrant disclosure at the summary hearing stage of the process.

REASONS

Reply

9Rule 9.3 of the Tribunal’s Rules provides that an applicant who wishes to respond to any of the allegations in a Response must file a Reply within 14 days. In this case, the time for filing a Reply has long passed.

10The Tribunal has the ability pursuant to Rule A4.2 “to vary or waive the application of any rule or procedure, on its own initiative or on the request of a party, except where to do so is prohibited by legislation or a specific rule.” The Tribunal must always consider whether it fair, just and expeditious to exercise its discretion to waive a Rule.

11I have considered the circumstances of this case, and find it appropriate to grant the applicant’s Request to file a late Reply. While the Reply was not filed within the required time period this matter has not yet been scheduled for a merits hearing, and it is still early in the Tribunal’s process. However, I find the respondent would be prejudiced if the summary hearing were to proceed on April 14, 2016 because of the late filing of the Reply. I therefore find it appropriate to grant an adjournment of the summary hearing to provide the respondent with the opportunity to file and rely upon additional documents or written submissions in advance of the summary hearing. To that end, the summary hearing scheduled for April 14, 2016 is cancelled and a new notice of hearing will follow.

Production

12I do not find it appropriate to order production at this stage of proceedings.

13Rule 16 of the Tribunal’s Rules of Procedure provides for the disclosure and production of documents by the parties. It is triggered by the issuance of the Notice of Hearing, which has not yet been sent out in this case.

14I am not persuaded that there are exceptional circumstances that warrant an order at this early stage of the proceedings. The Tribunal directed that a summary hearing be held and the applicant has not persuaded me that an order for production of the requested documents is necessary at this stage of the process. Further, I note that there is an issue with respect to whether some of the allegations fall within the jurisdiction of the Tribunal. The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances such as when production is necessary for the respondent to file a response. See Hashi v. Toronto Transit Commission, 2012 HRTO 869.

15I find it premature to order disclosure of the documents requested at this time.

ORDER

16The Tribunal orders:

a. The applicant’s Request to file her Reply is granted;

b. If the respondent wishes to rely on any additional documents and/or submissions at the summary hearing, these must be delivered to the applicant and filed with the Tribunal within 28 days of the date of this Interim Decision;

c. The applicant’s Request for a production order is denied.

17The summary hearing scheduled for April 16, 2016 is cancelled and shall be rescheduled by the Registrar.

18I am not seized of this matter.