Belanger v. Residence Inn by Marriott, 2016 HRTO 662

Human Rights Tribunal of Ontario

B E T W E E N:

Sandra Belanger

Applicant

-and-

Residence Inn by Marriott

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: May 17, 2016

Citation: 2016 HRTO 662

Indexed as: Belanger v. Residence Inn by Marriott

WRITTEN SUBMISSIONS

Sandra Belanger, Applicant

Michael Klug, Counsel

Residence Inn by Marriott, Respondent

Mark Gernon, Representative

Introduction

1The applicant filed this Application on September 27, 2012 alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2During the hearing which is ongoing and while the applicant was under cross-examination, the respondent moved that the Tribunal dismiss the Application for the following reasons: the Application is frivolous, vexatious or made in bad faith; the applicant withheld and failed to disclose arguably relevant or relevant documents, namely, clinical records; and, the applicant discarded or destroyed arguably relevant or relevant documents, namely her personal notes.

Is the Application frivolous, vexatious and made in bad faith?

3Section 4.6(1)(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended (“SPPA”) does allow Tribunals to dismiss applications on the basis that they are frivolous, vexatious or have been commenced in bad faith, but only if the Tribunal has made a Rule to that effect pursuant to section 25.1 of the SPPA. The Tribunal has not made such a Rule. Accordingly, I find that the Tribunal does not currently have the power to dismiss an Application as “frivolous, vexatious or [as having been] commenced in bad faith” pursuant to s. 4.6(1)(a) of the SPPA. Also, these provisions are used prior to a hearing being scheduled and not to be used mid-hearing.

Failure to disclose clinical notes

4There is no dispute that the clinical notes currently in the applicant’s possession are arguably relevant. However, the applicant submits:

Both the Tribunal’s Notice of Hearing and Rule 16.1 make it clear that the obligation to disclose “all arguably relevant documents in your possession” is time-limited and not an on-going obligation. Rule 16.1 provides explicitly that such production is due “not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties”. The Tribunal’s Rules, including 16.1, simply do not impose an express or implied obligation to produce relevant documents which come into a party’s possession after such fixed date.

While it is true that here, neither party met the Tribunal’s deadline, it is also inarguable that on the date that such production was made by the Applicant – March 7, 2014 – she was not in possession of the clinical records. The Tribunal’s rules, unlike the Rules of Procedure, do not extend the obligation to produce arguably relevant documents to those which are not in a party’s possession but in its control.

Under the Tribunal’s Rules, absent an order from the Tribunal, the Applicant was under no obligation to obtain clinical records, let alone produce them. In this regard, see Buttar v. Halton Regional Police Services Board, 2012 HRTO 1750….where it is written:

“If arguably relevant medical records are in a party’s possession, then these need to be produced pursuant to Rule 16.1. If, however, these medical records are not in a party’s possession but instead are in the possession of a doctor, then Rule 16.1 does not go so far as to require the party to obtain and disclose those records at that time. At the same time, where a party’s medical condition is a central issue in the proceeding and where the party seeks to rely upon medical reports in support of their position, it can reasonably be expected that such records will be regarded as arguably relevant to the proceeding and the party should make some reasonable effort to obtain such records. This is how I read this Tribunal’s decision in Drost v. Ottawa-Carleton District School Board, 2012 HRTO 235 (CanII), where a statement about an applicant’s responsibility to obtain and disclose arguably relevant medical documents was made in the context of an applicant who was attempting to resist a respondent’s request for production because it was untimely. I do not read the Drost decision as changing the obligation in Rule 16.1 that is restricted to documents in the Party’s “possession”. (Italics added.)”

In this case, as noted, the Applicant was not in possession of the documents at the relevant time on which the obligation to disclose all arguably relevant documents arose, and hence she was in no position to disclose the documents at that time. Buttar confirms that an Applicant had no obligation to obtain and produce medical records in the possession of his/her doctor unless and until she decides to rely on them. Here, until the cross-examination of the Applicant calling into question the very existence of the records and suggesting that the Applicant may have thrown them out, the Applicant did not intend to rely on the records.

Simply, put absent a request for same and/or an Order of the Tribunal, there is no obligation imposed by the Tribunal’s Rules, or otherwise, to produce arguably relevant documents which a party comes into possession of after the date fixed by the Rules i.e. in the usual course 21 days after the Notice of Hearing is sent by the Tribunal.

5The respondent submits that the duty to disclose arguably relevant documents is an on-going obligation and that the applicant was required to disclose the clinical notes as they came into the applicant’s possession notwithstanding the date fixed by the Rules and the Notice of Hearing. The respondent cites White v. Queen’s University, 2010 HRTO 298 where at para. 10 the Tribunal states:

In the event that the respondent comes into possession of the notes or becomes aware of their existence, the respondent is reminded of its ongoing disclosure obligations under the Rules and of the possible consequences of non-compliance.

6The respondent also cites para 6 of the Tribunal’s decision in Arnold v. Costco Wholesale Canada Ltd. 2012 HRTO 917:

I also am aware that as a result of the WSIAT decision dated April 5, 2012, the matter of the applicant’s entitlement to benefits for the accident that occurred on August 26, 2006 has been remitted back to the WSIB. It may be that, in the period from the date of the WSIAT decision until the date of the hearing in this matter on July 24 and 25, 2012, further documents may have been accumulated in the WSIB file which would be arguably relevant to the matters at issue before this Tribunal. Under the Tribunal’s Rules of Procedure, the parties have an ongoing obligation to disclose arguably relevant documents. Accordingly, I am further directing the applicant to request disclosure from the WSIB of his complete WSIB file from and after April 5, 2012 and to produce these documents to the respondents and file them with the Tribunal no later than July 4, 2012. [Emphasis mine.]

7It is not clear to me, however, that the Tribunal’s Rules of Procedure do, in fact, explicitly impose on the parties an ongoing duty to disclose arguably relevant documents. Nevertheless, I am of the view that there is indeed an ongoing obligation to disclose. It arises under the common law. Tribunals are bound by the rules of natural justice and procedural fairness and at a minimum the parties are entitled to know the case they have to meet and to have an opportunity to meet it.

8In addition, I would refer to Social Justice Tribunals Ontario Common Rules A3.1 and A3.2. First the rules and procedures are to be liberally and purposively interpreted and applied to promote the fair, just and expeditious resolution of disputes (A3.1). The purpose of the disclosure rule being that full disclosure is provided to allow the parties to understand the case to meet, but also for the benefit of the Tribunal to allow it to make a fair and just resolution of the dispute. Second, the rules and procedures are not be interpreted in a technical manner. In my view, this is precisely what the applicant is attempting to do and in making her submission she is effectively undermining the statutory goal of a fair, just and expeditious resolution of the dispute.

9In my view, where a respondent seeks dismissal of an application on the basis of non-disclosure of arguably relevant documents, the respondent must establish that the impugned non-disclosure has prejudiced or has had an adverse effect on the respondent’s ability to make a full defence. Inferences about the propriety of the applicant’s conduct are not necessarily relevant to whether the respondent’s right to a fair hearing is infringed.

10The last set of hearing dates was April 4, 5 and 6, 2016. Further hearing dates are required although they have not been scheduled as of yet. On the evening of April 5, 2016 the applicant turned over the clinical notes in excess of 80 pages to the respondent. On April 6, 2016, the hearing was adjourned so that the respondent could bring this motion.

11In my view, any prejudice to the respondent in the non-disclosure of the clinical notes is not irremediable prejudice. The clinical notes have now been disclosed. The respondent has the adjournment period to review the disclosed information. Moreover, this proceeding has been bifurcated. The evidence that has been given thus far relates to liability only. Should liability be found, the parties will then present their evidence with respect to remedy at a future date to be determined. It appears to me, that the clinical notes are essentially relevant to remedy only. I am of the view that under these circumstances, there is no adverse effect on the respondent’s ability to make a full defence.

Destruction of Personal Notes

12The respondent asks that the applicant be sanctioned for throwing out her personal notes. These would have been notes generated between 2009 when the incidents of alleged discrimination began and September 2012 when the Application was filed.

13The applicant testified that she sometimes keeps notes of regular day to day events. She indicated that any notes she threw in the garbage “did not have anything to do with the case”.

14In my view, in determining whether sanctions are appropriate, the Tribunal must determine whether the missing documents or notes would have been relevant to an issue at the hearing and the prejudice, if any, that there is to the respondent in not having those notes. In this case, it is not clear that the notes the applicant threw away had sufficient relevance to any of the issues at hand nor has the respondent demonstrated any prejudice in not having those notes.

15The fact that between 2009 and September, 2012 the applicant may have discarded pieces of paper on which she had written notes is hardly noteworthy. I do not find that there was an improper motive behind the disposal of these notes which occurred in advance of any litigation and I am not prepared to make any adverse inference or dismiss the Application as a result.