Human Rights Tribunal of Ontario
Between:
Edmund Hartley Applicant
-and-
St. Clair College of Applied Arts & Technology Respondent
Interim Decision
Adjudicator: Colin Johnston Date: May 5, 2016 Citation: 2016 HRTO 605 Indexed as: Hartley v. St. Clair College of Applied Arts & Technology
Written Submissions
Edmund Hartley, Applicant Irene Hartley, Representative
St. Clair College of Applied Arts & Technology, Respondent Jean Marentette, Counsel
Introduction
1This Application alleges discrimination, on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), with respect to provision of educational services.
2This Interim Decision deals with two Requests for Orders During Proceedings (“RFOP”) filed by the applicant, dated April 4 and 17, 2016. The first RFOP seeks to strike a document from the respondent’s list of documents and the second RFOP seeks certain particulars regarding that document.
3This Interim Decision also addresses a RFOP filed on behalf of the respondent dated April 29, 2016, which seeks multiple orders including:
a. a request for production of the applicant’s Accessibility Services file held in the respondent’s Student Services Office;
b. a request to file further documents in advance of the hearing;
c. a direction that the applicant provide a written report or a full summary of the evidence of its expert witness; and
d. a request to quash any Summons issued for its President to testify in the hearing scheduled for May 18 and 20, 2016, or alternatively, an adjournment of those hearing dates.
Applicant’s Request to Strike a Document
4The applicant requests that a document titled “Semester 1 Final Clinical Evaluation” (the disputed document) located at Tab 22 of the respondent’s list of arguably relevant documents be struck from the list of documents and not be permitted into evidence. The applicant alleges that the document is fraudulent and has been altered from its original form.
5The respondent did not file a response (Form 11) to this RFOP but made reference to the applicant’s request in its Response to the applicant’s second RFOP. In its Response, the respondent denies that the disputed document is fraudulent and states that its origins were fully explained in a letter to the applicant dated April 29, 2016.
6The applicant’s request to strike the disputed document is, in my view, premature at this juncture. First, it is not clear whether the respondent intends to rely on the disputed document at the hearing as it is only listed in its list of arguably relevant documents.
7Second, if the respondent intends to rely on the disputed document then its admissibility is best dealt with at the hearing where the respondent will have the opportunity to call evidence on the issue and the applicant will have the opportunity to cross-examine that evidence.
8This is not a matter which can be properly decided in advance of the hearing process: see James v. Workplace Safety and Insurance Board, 2013 HRTO 153 at paras 7 and 8. Accordingly, the request to strike the disputed document is denied at this time.
Applicant’s Request for Particulars Regarding the Disputed Document
9The applicant requests particulars regarding the disputed document namely: Who authored it? When was it created? And for what purpose was it was created?
10In its Response, the respondent states that it has provided the applicant with answers to these questions in a letter dated April 29, 2016.
11The applicant contends that the April 29, 2016 letter does not properly respond to his request, in that the letter refers to a different document than what is located at Tab 21 in the respondent’s material.
12The Tribunal does not have either document at this point in time. At this stage of the proceeding, the Tribunal only has the list of the parties’ arguably relevant documents. Copies of documents are not produced to the Tribunal unless a party intends to rely on the document at the hearing. In the circumstances, I direct the respondent to provide the applicant with the name of the author or authors of the disputed document, the date it was created and the purpose for which it was created.
Respondent’s Request for Production
13The respondent requests a number of orders including an order that its Student Service Office (“SSO”) release copies of the applicant’s Accessibility Services file held by the SSO to counsel for the respondent. The respondent states that the SSO file would include copies of the applicant’s request for accessibility services for the 2015 Winter term, documentation supporting those requests, intake documents, and notes made by the applicant’s Student Services counsellor.
14The respondent explained that the files kept in the SSO contain confidential information and cannot be released without the applicant’s consent or an Order from the Tribunal. The respondent described the file as being analogous to occupational health file kept by an employer.
15The respondent has asked the applicant for his consent to release the file. The applicant denied this request.
16The applicant opposes this request on the basis that his SSO file contains private information including confidential notes taken by the applicant’s Student Services counsellor during counselling sessions. The applicant submits that the materials contained in these files are, for the most part, irrelevant to the issues in dispute in this case. The applicant