K.Z. v. Cambridge Kips Inc., 2017 HRTO 1489

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K.Z. as represented by her Litigation Guardian R.Z.

Applicant

-and-

Cambridge Kips Inc.

Respondent

INTERIM DECISION

Adjudicator: Eban Bayefsky

Date: November 14, 2017

Citation: 2017 HRTO 1489

Indexed as: K.Z. v. Cambridge Kips Inc.

WRITTEN SUBMISSIONS

K.Z., Applicant

R.Z., Litigation Guardian

Cambridge Kips Inc., Respondent

Pamela Krauss, Counsel

introduction

1This Interim Decision addresses the applicant’s request for the production of documents, as well as the parties’ respective requests to amend their pleadings.

2The applicant filed an Application alleging discrimination in goods, services and facilities on the ground of family status, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). Specifically, the applicant alleged that the respondent, a gymnastics club, suspended her membership as a result of the conduct of her parents.

3By Request for Order During Proceedings (“RFOP”) filed on August 18, 2017, the applicant requested production of various documents.

4By RFOP filed on September 25, 2017, the respondent sought to amend its Response to the Application by adding the statutory defence under section 20(3) of the Code regarding recreational clubs. The respondent also sought to withdraw large portions of its Response as irrelevant.

5By RFOP filed on October 10, 2017, the applicant sought to amend her Application by adding the ground of disability.

6For the following reasons, I grant the applicant’s production requests in part, I grant the respondent’s request to amend its Response in part, and I deny the applicant’s request to amend her Application.

decision

The Applicant’s Production Requests

7The 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 connection between the information or document sought and the facts or issues in dispute before the Tribunal. This 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.

8The applicant requested production of the following documents:

(i) Names, titles, dates of office, and mailing addresses of each Board Member of the Respondent between June 2016 and January 17, 2017 – for the purpose of issuing summonses;

(ii) Mailing addresses of Alex Schlosser and Jessica Fylyshtan, who coached the Applicant – for the purpose of issuing summonses;

(iii) Hand written notes (Minutes of the Meeting) taken at the Annual General Meeting of Thursday, December 8, 2017, including the name and title of the person who took the notes;

(iv) Hand written notes (Minutes of the Meeting) taken at the Board Meeting of Sunday, January, 15, 2017; including the name and title of the person who took the notes;

(v) Original agenda of the January 15, 2017 Board Meeting, including the name and title of the person who created and distributed the agenda (including the actual distribution communication);

(vi) Hand written notes (Minutes of the Meeting) taken for all Board Meetings between June 1, 2016 and January 15, 2017, including the name(s), title(s), and mailing address(es) of the person(s) who took the notes;

(vii) Complete and unedited video file(s) of the “in camera session that began at 6 p.m. to deal with board member issues…” that was said to have been recorded on Sunday, January 15, 2017, and all video and/or audio files from the Sunday, January 15, 2017 Board Meeting;

(viii) 2013 and 2014 Constitution of the Cambridge Kips Gymnastics Club;

(ix) 2013, 2014, 2015 and 2016 Annual General Meeting minutes publications to the Members of the Respondent; and

(x) All communications (emails, instant/text messaging, voice mails, file transfers, and any other technology that transmits information electronically) between past and/or present Board Members in regards to the Applicant or either of her Parents between June 1, 2016 and January 17, 2017.

9The respondent produced the 2015 Constitution of the Cambridge Kips Gymnastics Club, indicating that there are only 2010 and 2015 versions of the Constitution and that the 2012 [sic] and 2013 Constitutions do not exist. The respondent submitted that the remaining production requests are not arguably relevant to the discrete issue of whether there was a breach of the Code in this case.

10The applicant’s submissions in support of her production requests were very limited. They only specifically addressed two items, namely, that:

(i) in its disclosure of arguably relevant documents, the respondent referred to a January 15, 2017 “in-camera” Board meeting, but did not disclose the video of this meeting; and

(ii) the respondent disclosed only part of a June 25, 2016 email chain.

11While not entirely clear from the applicant’s submissions, she appears to be suggesting that the reference to an “in-camera” meeting means that the meeting must have been video and/or audio taped. However, there is no evidence that either the in-camera meeting or the Board meeting was taped. I deny this part of the applicant’s requests.

12Given that the June 25, 2016 email chain has already been disclosed as arguably relevant, to the extent that the full email chain has not been disclosed, the respondent should produce it.

13The applicant has made no submissions either addressing or demonstrating a nexus between the other documents sought and the facts or issues in dispute in this case. I am not prepared to order their disclosure.

The Respondent’s Request to Amend the Response

14Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expedition resolution of any matter before it, the Tribunal may “allow any filing to be amended.”

15The applicant consented to the respondent’s request to amend. The request is granted.

16The respondent sought to “strike a large quantity of irrelevant material pled in the initial Response filed.” However, the respondent did not specify which portions of its Response it wished struck.

17In my view, parties should normally have considerable latitude in the pleadings they wish to rely on for the purposes of the hearing, provided that any amendment would not substantially prejudice the opposing parties.

18I note that, while the applicant submitted that she would be prejudiced by the deletion of “any” part of the Response, she also stated that “many of the documents and facts submitted by the Respondent are not relevant to the Application….”

19Given that the respondent has not identified which portions of its Response it wishes struck, I am not, at this time, prepared to grant this part of the respondent’s Request. However, in light of the applicant’s submissions, the respondent may renew its Request to amend its Response, in accordance with Rule 19 of the Tribunal’s Rules of Procedure. The respondent should note that the hearing adjudicator may still allow the applicant to cross-examine its witnesses on the information provided in the original Response, even if the Tribunal allows it to amend its Response.

The Applicant’s Request to Amend the Application

20In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

21The applicant submitted that the arguably relevant documents disclosed by the respondent made “inferences to [her suffering from] anxiety, depression and/or post-traumatic stress disorder.” In support of this, the applicant provided a quote from the respondent’s January 2017 Board meeting, reproduced by the applicant as follows:

With the child’s age we do not feel she would be able to be without a full time guardian in the building at both drop off and pick up. It would also be very hard on a 12yo child to know her parents are kicked from the club and feel comfortable enough to come into the club alone and train at her level. [emphasis added]

22The applicant submitted that she would be prejudiced if not allowed to add the ground of disability to her Application, and that the respondent would not suffer any prejudice since the hearing will not take place until March 2018.

23The respondent submitted that there is no evidence that the applicant had a disability and that, in any event, it would be prejudiced by what would amount to a fundamental change in the nature of the proceedings.

24The applicant has neither stated nor provided any support for the suggestion that she, in fact, had a disability, or that she was discriminated against on the ground of disability. She has simply intimated that the respondent might have considered her to have a disability, which suggestion is itself unsubstantiated.

25I agree with the respondent that the proposed amendment would significantly alter and expand the nature of these proceedings, to the detriment of both the respondent and the process as a whole.

26While the hearing is still some months away, I see no basis for allowing the proposed amendment.

order

27For the above reasons, the Tribunal orders as follows:

(i) The applicant’s production request is granted, in part. Within 14 days of the date of this decision, the respondent must deliver to the applicant and file with the Tribunal copies of the full June 25, 2016 email chain.

(ii) The Response to the Application is amended to include the statutory defence of section 20(3) of the Code. The applicant may, within 21 days of the date of this decision, deliver to the respondent and file with the Tribunal an amended Reply on the issue of section 20(3) of the Code.

(iii) The respondent’s request to withdraw certain portions of its Response is denied at this time. The respondent may renew its Request to amend its Response, in accordance with Rule 19 of the Tribunal’s Rules of Procedure.

(iv) The applicant’s request to amend the Application is denied.