Gallagher v. OCAD University, 2017 HRTO 1458

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Gallagher

Applicant

-and-

OCAD University

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 3, 2017

Citation: 2017 HRTO 1458

Indexed as: Gallagher v. OCAD University

WRITTEN SUBMISSIONS

John Gallagher, Applicant

Self-represented

OCAD University, Respondent

Stephanie Young, Counsel

1This Interim Decision addresses three Requests for Orders During Proceedings (“RFOPs”) filed by the applicant in this case.

2The applicant alleged that the respondent discriminated against him because of disability and reprised against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among other things, the applicant alleged that his managers bullied him and unfairly criticized his performance. He also alleged that the respondent failed to provide reasonable accommodations for his disability. In addition, he alleged that the respondent reprised against him for making an accommodation request by threatening him with termination if he did not agree to an extension of his probationary period.

OCtober 3, 2017 RFOP

3In his October 3, 2017 RFOP, the applicant made the following requests:

a. he requested production of his full human resources file;

b. he requested certain accommodations for the hearing – in particular extra time and a solid block of time to give his evidence and permission to read from a written account he has prepared; and

c. he also appeared to seek permission to file additional medical evidence in this case.

4The respondent filed a Response to the applicant’s RFOP (“Form 11”) in which it stated that it had already produced all arguably relevant documentation from the applicant’s human resources file. However, it also indicated that it did not object to producing a complete copy of the file to the applicant and that it had produced the entire file with its Form 11.

5The respondent submitted that any accommodation requests relating to the hearing are premature and should be determined closer to the hearing. Finally, the respondent took no position with respect to the applicant’s apparent request to file additional medical documentation.

Finding

Request for human resources file

6The basic principle in determining a production request by this Tribunal is whether the requested documents are “arguably relevant”. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. See McKay v. Toronto Police Services Board, 2009 HRTO 1220 at paras. 12-13.

7At this stage, I find that the applicant’s human resources file is at least arguably relevant and must be produced. It appears that the respondent has already produced the applicant’s entire human resources file to him. To the extent that it has not already done so, the respondent must produce the entire file to the applicant.

Accommodations during hearing

8I have taken note of the applicant’s accommodation requests. I will be addressing these requests in a pre-hearing Case Assessment Direction.

Request to file additional medical documentation

9As noted in the Notice of Hearing in this case, the deadline for the parties’ hearing documents and witness statements was October 30, 2017. It does not appear that the applicant has filed a copy of his hearing documents and witness statements to date. I address this issue below. To the extent that the applicant wishes to add medical documentation to his hearing documents, he is permitted to do so. He must file any additional documentation by November 10, 2017.

October 10 and 24, 2017 RFOPs

10In his October 10, 2017 RFOP, the applicant accused the respondent of stalling and wasting time in this case. He requested that the hearing proceed in a timely manner and that the respondent engage in no further discrimination or lies designed to provoke his disabilities. In his RFOP, he recounted a negative experience he recently had in the Superior Court of Justice.

11The applicant filed an RFOP on October 24, 2017, in which he requested certain documents from his human resources file that were not produced by the respondent. In particular, he indicated that the respondent had failed to produce to him a copy of the résumé he submitted when he applied for employment as well as some references he provided at the time of his hiring. In his RFOP, he also appeared to restate a number of accommodation requests relating to the hearing in this case. He also continued to accuse the respondent of inappropriate conduct such as “sickening and abusive comments”.

12The respondent filed a Form 11 on October 26, 2017, which appears to respond to the applicant’s October 10, 2017 RFOP. In the Form 11, it denied that it has treated the applicant in a disrespectful manner. The respondent also objected to any attempt on the applicant’s part to limit its ability to present its case.

13The respondent does not yet appear to have filed a Response to the applicant’s October 24, 2017 RFOP and it is not necessary for it to do so. In that RFOP, the applicant appears to restate many of his previous requests which I consider to be covered by the orders I am making in this Interim Decision.

Finding

14I have already ordered that the respondent produce to the applicant a copy of his full human resources file to the extent that it has not already done so. This must include any résumé or references included within that file.

15I do not consider any of the conduct by the respondent’s counsel so far in this proceeding to have been disrespectful or inappropriate. The litigation process is one in which certain delays and difficulties in scheduling may be expected. While this may be frustrating for parties, such issues are inherent to the litigation process. As well, the litigation process is an adversarial process in which parties do not always agree about issues that arise during the proceeding. Again, this is an inherent part of the litigation process.

16The Tribunal’s Rules of Procedure (“Rules”) require parties to treat each other and the Tribunal with courtesy and respect. I do not believe that the respondent’s counsel has breached this obligation to date. The applicant must stop accusing the respondent’s counsel of improper conduct. The Tribunal has the power to manage its own proceedings and to ensure compliance with its Rules. If I consider that a party has breached the Rules or acted inappropriately, the parties can be assured I will address the issue.

Applicant’s pre-hearing disclosure

17As noted in the Notice of Hearing sent to the parties, October 30, 2017 was the deadline for the pre-hearing disclosure required under Rule 16.2 and 17 of the Tribunal’s Rules. The respondent has made the necessary pre-hearing disclosure but the applicant has not. It is possible that the applicant has confused the two stages of the disclosure process set out in the Tribunal’s Rules. The first stage involved the disclosure of all arguably relevant information. The second stage requires parties to deliver the following to each other and the Tribunal:

a. a copy of all documents they intend to rely upon in the hearing;

b. a list of witnesses they intend to call in the hearing; and

c. a statement of each of the witnesses’ anticipated evidence.

18The applicant must file the above materials immediately and no later than November 10, 2017. Even if the applicant has already sent certain documents into the Tribunal which he intends to rely upon at the hearing, he must provide an organized, tabbed copy of his hearing documents to the Tribunal and to the respondents. He must also provide a witness statement for himself which summarizes his expected testimony at the hearing. This summary of his expected evidence must be a summary (not a copy of the full evidence he expects to present) and it must not exceed 20 pages in 12-point font and with 1-inch margins.

orders/directions

19For the reasons set out above, the Tribunal orders as follows:

a. If it has not already done so, the respondent must produce to the applicant a copy of his entire human resources file no later than November 10, 2017;

b. If the applicant wishes to refer to additional medical evidence in the hearing, he must deliver a copy to the Tribunal and to the respondent by November 10, 2017.

c. The applicant must deliver to the Tribunal and the respondent a copy of the documents he intends to rely upon in the hearing as well as a list of his witnesses and a summary of the evidence that each witness is expected to provide by November 10, 2017. The applicant’s witness statement must meet the specifications set out in para. 18 above.