Kayla Logan-Maiato v. Western University, 2017 HRTO 1067

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kayla Logan-Maiato

Applicant

-and-

Western University

Respondent

INTERIM DECISION

Adjudicator: Bruce Best

Date: August 16, 2017

Citation: 2017 HRTO 1067

Indexed as: Logan-Maiato v. Western University

WRITTEN SUBMISSIONS

Kayla Logan-Maiato, Applicant

Self-represented

Western University, Respondent

Sari Springer, Counsel

1This Application alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing is scheduled in the Application for October 2 and 3, 2017. Disclosure under Tribunal Rules 16.2, 16.3 and 17 is presently due on August 18, 2017.

3It appears that there have been some communication delays or errors in this matter. On June 21, 2017, the applicant filed a Request for an extension of time to file her materials, and/or to reschedule the hearing. The respondent filed a Response to that Request on July 5, 2017, objecting to the rescheduling of the hearing, but not opposing a brief extension of time for the applicant to file her disclosure. The respondent also filed a further Request for an order requiring the applicant not to further publicize documents provided through its disclosure.

4The applicant subsequently contacted the Tribunal indicating that she had not received any Response to her Request. The materials filed by the respondent were re-sent to the applicant on August 1, 2017. As of today’s date, the applicant has not filed any response to the respondent’s Request.

5I will deal with each of the requests in turn.

adjournment / extension of time

6The applicant requested, on June 21, 2017, that the hearing set for October 2 and 3, 2017 be rescheduled, and/or that she be given an extension of time to provide her disclosure of documents and witness statements.

7Her reasons for the extension of time to file her documents included that she was out of the country, or out of the province, and that at some point she would have no access to cellular or wireless service for an extended period of time. She claims that the respondent had not provided or was refusing to provide documents she considered relevant or necessary to determine the case. She acknowledged that the respondent had sent disclosure to the address she had given in Ontario, but indicated that she would not be in a position to review that disclosure until the end of July 2017 because she was travelling across the country. She argued that as the respondent was in possession of all the relevant documents that she was at a disadvantage, and that she wanted a fair chance to represent herself. She also indicated in an earlier request that she required additional time as she was seeking legal counsel.

8She also indicated that, for reasons related to her disability, she was having difficulty in preparing for the hearing. She did not provide any medical documentation to indicate that she was medically incapable of proceeding with the hearing.

9The respondent opposes rescheduling of the hearing. It indicated that it has made a number of efforts to ensure that the applicant can receive its documentary disclosure, and to confirm with the applicant the best address for service. It argues that it has already provided extensive disclosure to the address the applicant provided. It argues that the fact that the applicant has chosen not to be where she asked to have the disclosure sent is not a valid reason for adjourning the hearing.

Decision on Rescheduling

10The Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments states:

Scheduling and Rescheduling Hearings

The HRTO's approach to scheduling and rescheduling hearings is designed to give the parties a fair opportunity to obtain suitable dates.

When a hearing is scheduled, the HRTO will issue a Confirmation of Hearing setting the date(s) for the hearing, as well as the location and start time. If rescheduling is required, the parties are encouraged to agree on mutually available dates that are within 12 weeks of the original hearing date(s). If the parties are able to agree on alternative dates, one party must advise the HRTO Registrar in writing within 14 days of the Notice of Confirmation of Hearing. The HRTO will make every effort to schedule the hearing for dates provided by the parties.

Requests for Adjournments

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative.

11The applicant has not pointed to any extraordinary circumstances that would support her request to adjourn the hearing. Her request, rather, was primarily based on the fact that she was out of the province for an extended period of time, which may delay her ability to prepare for the hearing.

12The hearing was scheduled by Notice of Hearing sent to the parties on May 8, 2017, approximately six months before the scheduled hearing dates. The applicant was granted an extension of time to provide her arguably relevant documents under Rule 16.1.

13The applicant has also raised issues related to her disability which she indicates have affected her ability to prepare for the hearing. She has not indicated, however, that she cannot participate in the hearing itself.

14In my view, there is no basis to adjourn the hearing at this point. The hearing will proceed on October 2 and 3, 2017 as scheduled.

Disclosure of Documents and Witness Statements

15The basis for the request for an extension of time to meet the disclosure requirements under Rules 16 an 17 is largely based on the same grounds set out above.

16Given the communication issues that appear to have arisen in this case, and the resulting administrative delays that have occurred in addressing the parties’ requests, I am prepared to grant the parties an extension of time to deliver and file the documents on which they intend to rely under Rules 16.2 and 16.3, and to file their witness statements under Rule 17, until Tuesday, September 5, 2017.

ORder Limiting Public Disclosure of Documents

17The respondent advises that it has further documents to disclose. However, it has not yet done so based on concerns that the applicant has indicated on social media that she intends to publically share documents related to this Application. The respondent has asked the Tribunal that the applicant be ordered to comply with Rule 3.3 of the Tribunal’s Rules of Procedure. That rule provides:

Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

18As noted in Rosario v. Thunder Bay Police Services Board, 2015 HRTO 60 at para. 9:

Rule 3.3 is essentially a codification of the implied undertaking rule in civil litigation. In Juman v. Doucette, 2008 SCC 8, the Supreme Court of Canada explained that the implied undertaking rule is necessary because pre-hearing discovery rules amounts to an invasion of privacy of litigants who are compelled to disclose all relevant information, including evidence that may be embarrassing or incriminating. The public interest in determining the truth in the civil proceeding outweighs litigants’ privacy interests, but this invasion of privacy should be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone.

19The respondents provided a screenshot of a Facebook page where the applicant indicated that she was intending to share materials related to the Application over social media.

20As noted, the applicant indicated that she had not received the respondent’s Request for the above order. The materials were sent to her again on August 1, 2017. As of today’s date, she has not filed any submissions in response.

21In my view, it is not necessary to grant the order requested in the absence of an actual breach. It is sufficient to point out that the parties are required to comply with the Tribunal’s Rules. Rule 3.3 applies to the parties. The parties may not use, directly or indirectly, any materials provided by the other party in these proceedings, including under Rules 16 and 17, for any other purpose. This clearly includes that they may not distribute or publish such documents through social media.

22However, given her stated intention to distribute materials related to the Application on social media, it is also appropriate to specifically caution the applicant that a breach of Rule 3.3 has been held by the Tribunal to be an abuse of the Tribunal’s process. If she were found to have breached the Rule, the Tribunal would have the power to dismiss her Application on that ground alone. See Vizcaya v. UJA Federation of Greater Toronto, 2012 HRTO 447 at para. 6, and Rosario v. Thunder Bay Police Services Board, 2015 HRTO 653 at paras. 50-51.

Outstanding disclosure

23The respondent has indicated that it has further documentary disclosure, which it has delayed providing pending the Tribunal addressing its concern respecting Rule 3.3. The respondent shall provide any further arguably relevant documents in its possession to the applicant within 7 days of the date of this Order.

24It is not clear from the materials filed whether the applicant has complied with Rule 16.1, though I note she had already filed a number of documents with her Application. The applicant shall also provide any further arguably relevant documents in her possession to the respondent within 7 days of the date of this Order.

25The applicant has also suggested that the respondent was refusing to disclose certain documents which she claims are arguably relevant to these proceedings, though as noted by the respondent this claim was apparently made before the applicant had reviewed the respondent’s disclosure under Rule 16.1. If, following receipt of the respondent’s further disclosure above, the applicant believes the respondent has not complied with Rule 16.1, she may file a Request for an Order during Proceedings in Form 10 seeking an order requiring production of the specific documents she believes have not been provided.

Directions

26By August 23, 2017, the parties shall comply with Rule 16.1.

27By September 5, 2017, the parties shall deliver and file their documents and witness statements in accordance with Rules 16.2, 16.3 and 17.

28I am not seized.