HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gerald Ash
Applicant
-and-
Miller Transit Ltd.
Respondent
INTERIM DECISION
Adjudicator: Yasmeena Mohamed
Indexed as: Ash v. Miller Transit Ltd.
WRITTEN SUBMISSIONS
Gerald Ash, Applicant
Self-represented
Miller Transit Ltd., Respondent
Daniel E. Attwell, 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 September 7 and 8, 2017.
3A Case Assessment Direction ("CAD") was issued on August 22, 2017, directing the parties to comply with the disclosure obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure within a specified time.
4In particular, the CAD directed the applicant to disclose by August 24, 2017: a copy of all arguably relevant documents, a list of of all the documents the applicant intended to rely on, a list of witnesses, witnesses' statements and file a response to the respondent's production and adjournment request. The applicant filed his documents with the Tribunal and the respondent within the time specified in the CAD. However, the applicant did not file a response to the respondent's production and adjournment request.
5The CAD directed the respondent to disclose by August 29, 2017: a list and copy of the documents the respondent intended to rely on, and a list of witnesses and witnesses' statements by August 29, 2017. The CAD also directed the respondent to notify the Tribunal upon receipt of the applicant's disclosure, whether it wished to proceed or withdraw its production and adjournment request.
6By letter dated August 24, 2017, the respondent's notified the Tribunal that it wished to proceed with its production and adjournment request. In addition, the respondent requested an extension of time to file their documents and witness statements.
7This Interim Decision deal with each of the respondent's requests in turn.
PRODUCTION REQUEST
8The respondent has requested the production of documents which include and are not limited to: the applicant's resume, all complaints filed with the respondent, all communications written or otherwise with the respondent, all video recordings of the applicant's complaints with the respondent, all communication relevant to the applicant's employment, medical records and any and all documents relating to the applicant's mitigation efforts after termination etc.
9The respondent submits that with the exception of one audio recording, all the documents disclosed by the applicant appear to have been selected from the respondent's earlier disclosure and that the applicant has not indicated that any additional documents follow.
10Having reviewed the applicant's audio and documentary disclosure against the respondent's production request it is unclear to me whether the applicant's disclosure responds in part or entirely to the respondent's production request. In particular, the applicant has not indicated whether he is in possession of the various documents sought by the respondent (and if so whether he is refusing to disclose them for some reason), or whether he has disclosed all arguably relevant documents in his possession and simply does not have any of the other documents sought. It is, of course, the applicant's legal obligation to disclose all arguably relevant documents in his possession whether or not he intends to rely on those documents. The Tribunal will address the respondent's production request at the outset of the hearing on September 7, 2017.
ADJOURNMENT REQUEST
11On August 17, 2017, the respondent requested an adjournment of the September 7 and 8, 2017 hearing dates on the basis that it had not received disclosure of all arguably relevant documents from the applicant and therefore it will not have sufficient opportunity to prepare for the hearing.
12By letter dated August 24, 2017, the respondent submits that applicant's continued refusal and/or failure to disclose all arguably relevant documents continues to impair the respondent's ability to make full answer and defence and it will suffer prejudice if the hearing is not adjourned.
13The Tribunal's Practice Direction on Requests for Adjournments states:
The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of 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.
14The respondent's request is based on the applicant's alleged failure to disclose all of her arguably relevant documents, which has impaired its ability to prepare for the hearing. However, it is not clear to me that the documents requested by the respondent exist, or, if they do, whether they are arguably relevant to their defence.
15In my view, there is no basis to adjourn the hearing at this point. The respondent has not pointed to any extraordinary circumstances, as defined by the Tribunal that would support its request to adjourn the hearing The hearing will proceed on September 7 and 8,2017, as scheduled.
EXTENSION OF TIME REQUEST
Disclosure of Documents and Witness Statements
16The respondent's basis for the request for an extension of time to file documents it intends to rely on and witness statement is largely based on the same grounds set out above.
17Given the lateness of the respondent's request, I am prepared to grant the respondent only a brief extension of time to deliver and file the documents they intend to rely on and witness statements to noon, Friday, September 1, 2017.
ORDER
18The respondent's adjournment request is denied.
19The respondent's production request will be addressed on September 7, 2017.
20The respondent's deadline for filling documents it intends to rely on and witness statements has been extended to noon, Friday, September 1, 2017.
Dated at Toronto, this 29th day of August, 2017.
"Signed by"
Yasmeena Mohamed
Vice-chair