HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda De Rose
Applicant
-and-
Windsor-Essex Catholic District School Board and Jim Minello
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: De Rose v. Windsor-Essex Catholic District School Board
WRITTEN SUBMISSIONS
Linda De Rose, Applicant
Windsor-Essex Catholic District School Board and Jim Minello, Respondents
James A. Renaud, Counsel
Brian Nolan, Counsel
background
1This Interim Decision addresses the applicant’s November 2, 2017 Request for an Order During Proceedings for the production of all arguably relevant documents under Rule 16 of the Rules of Procedure on the merits of the Application.
2On November 7, 2017, the respondents filed a Response to the Request for an Order, in which they oppose the request.
parties’ submissions
Applicant’s Submissions
3The applicant submits that by Notice of Hearing dated May 10, 2017, the Tribunal advised the parties of the dates for hearing in this matter, including the deadlines for document disclosure in accordance with Rules of Procedure. The respondents were unavailable and wrote the Tribunal and counsel on May 23, 2017. Through the usual process, new dates for the hearing were eventually arranged for December 14 and 15, 2017.
4The applicant maintains that in the interim, there were issues outstanding from a number of Requests for an Order During Proceedings by the parties and the Tribunal issued a Case Assessment Direction (“CAD”) dated July 18, 2017. The essence of the CAD was that the dates set for December 14 and 15, 2017 were to be used to deal with preliminary issues as set out therein.
5Nonetheless, on September 11, 2017, the Tribunal sent a Notice of Rescheduled Hearing and the two disclosure dates for documents and witness statements were set for October 2 and October 30, 2017.
6The applicant notes that it complied with disclosure of arguably relevant documents in accordance with Rule 16.1 of the Rules of Procedure for the hearing on the merits on October 2, 2017.
7The applicant submits that the respondents did not provide their arguably relevant documents by October 2, 2017. The respondents had written the Tribunal on September 27, 2017 seeking clarification of whether the Notice of Rescheduled Hearing dated September 11, 2017 meant that the hearing on the merits had been scheduled. They did not explain why this enquiry was important.
8On October 26, 2017, the Tribunal responded to the respondents' correspondence of September 27, 2017 by acknowledging that no hearing on the merits had been set yet. The main consequence of that appeared to negate the deadlines for disclosure and other requirements that would otherwise have been past due (October 2, 2017 for disclosure of documents) and then imminent (October 30, 2017 for documents relied on and witness statements).
9The applicant argues that given the breadth of the of July 18, 2017 CAD, the preliminary matters touch upon the entire Application, its history before filing and the history since filing. These preliminary matters very much go to the heart and entire background of this Application to the present. Among other things, the respondents want the entire Application dismissed. The applicant will be required in the Preliminary Hearing to put the full context before the Vice-chair. Accordingly, all of the arguably relevant documents in the period should be disclosed to permit the applicant full access to the respondents’ documents and to rely on them to the degree desired, raise any issues with respect to any claims for privilege and, generally, put forward her best case to address these very serious issues that are the subject matter of the Preliminary Hearing.
10The applicant argues that the respondents have provided some document disclosure but only what they have deemed to be those documents they will rely on for the preliminary issues. Thus, the applicant has no way of knowing what other documents in the possession or control of the respondents might also assist her case on the preliminary issues. Without such disclosure, the applicant is at a distinct disadvantage, not only because she has revealed all of her arguably relevant documents, but she has not had access to or an ability to review the same scope of documents from the respondents.
11The applicant argues that it would be prejudicial and unfair to not have the respondents produce these documents presently and potentially considerably disruptive to only have access to them when the evidence and arguments arise on December 14 and 15, 2017.
12The applicant further argues that there is no discernable prejudice to the respondents and they have no valid reason to avoid such disclosure.
Respondents’ Position
13The respondents oppose the request for production.
14The respondents note that Rule 16 of the Rules of Procedure relates to disclosure of documents with respect to a hearing of an application on its merits.
15They maintain that the Tribunal, by letter dated October 26, 2017, confirmed that a hearing of the Application on its merits has not yet been scheduled. Pursuant to the July 18, 2017 CAD, the Preliminary Hearing is set for December 14 and 15, 2017, to address specific preliminary issues.
16The respondents argue that in the July 18, 2017 CAD, the Tribunal specifically set out instructions for the parties to deliver and file copies of any further documents, witness lists, witness summaries and cases they intend to rely on for the Preliminary Hearing within 35 days of the date of the CAD.
17The respondents maintain that the issues raised therein were brought by the respondents and accordingly, the respondents have delivered and filed documents they intend to rely on for the purposes of the Preliminary Hearing.
18The respondents argue that the applicant is seeking disclosure of all relevant documents from the respondents that relate to the merits of the Application. However, the applicant fails to identify how those documents are tied to the issues to be addressed at the Preliminary Hearing, or how those documents relate to dismissal, delay and/or removal of the personal respondent as a party to the Application.
19Further, and in the alternative, the respondents submit that a blanket request to produce all arguably relevant documents at this stage is improper. If the applicant believes that certain document(s) that are not in her possession are relevant to the issues to be addressed at the Preliminary Hearing, she should identify those documents specifically and the reasons why they may be relevant.
20The Tribunal has recognized that disclosure of documents can be premature and will only order early production of documents in exceptional circumstances.
analysis
21I note that the administrative error made by the Tribunal in sending the September 11, 2017 Notice of Rescheduled Hearing and the two disclosure dates for documents and witness statements for a merits hearing was unfortunate and regrettable as it made the process more difficult for the parties. However, I find that it is premature to order disclosure of all arguably relevant documents for the merits hearing of the Application.
22The December 14 and 15, 2017 preliminary hearing will address the following specific issues:
a. Whether the Application should be dismissed, in whole or in part, for the following reasons:
o it appears that some or all of the allegations may be untimely;
o the substantial administrative delay with processing the Application; and
o it appears that there may have been an abuse of process by the applicant.
b. The request to remove the personal respondent as a party to the Application.
23In the July 18, 2017 CAD, the Tribunal specifically set out instructions for the parties to deliver and file copies of any further documents, witness lists, witness summaries and cases they intend to rely on within 35 days of the date of the CAD.
24The respondents have delivered and filed documents they intend to rely on for the purposes of the Preliminary Hearing.
25The applicant failed to identify how all relevant documents for a merits hearing are tied to the issues to be addressed at the Preliminary Hearing.
26I find that a blanket request to produce all arguably relevant documents at this stage is improper. In Horner v. Accenture Business Services for Utilities, 2015 HRTO 1583 at para. 15, the Tribunal held that it was premature at the stage of a preliminary hearing, to order the production of documents not relevant to the issues to be addressed at the preliminary hearing:
All other documents that the applicant has outlined in the Request are not relevant to the issues to be addressed at the Preliminary Hearing. The other documents listed by the applicant may be arguable relevant to the broader issues raised in the Application and the parties will be expected to adhere to the disclosure requirements and timelines under Rule 16 that will be set out in the Notice of Hearing of the merits, should such a Notice be sent out to the parties in the future.
27The applicant has failed to show how she would be substantially prejudiced at the Preliminary Hearing for having complied with the disclosure obligations under Rule 16.1 of the Rules of Procedure for the merits hearing, while the respondents have not. The issues to be addressed at the Preliminary Hearing are discrete issues that do not touch on the merits of the Application.
28If the applicant believes that certain document(s) that are not in her possession are relevant to the issues to be addressed at the Preliminary Hearing, she may file a Request for an Order During Proceedings to request those documents specifically and identify why they may be relevant.
29I find that it is premature to order the disclosure of all arguably relevant documents under Rule 16 of the Rules of Procedure. The request for production of all arguably relevant documents under Rule 16 is denied.
30I note that the applicant has not delivered to the respondents and filed with the Tribunal copies of any further documents, witness lists or cases she intends to rely upon to address the matters at the Preliminary Hearing.
direction to the applicant
31The applicant shall deliver to the respondents and file with the Tribunal copies of any further documents, witness lists or cases she intends to rely upon at the Preliminary Hearing by November 30, 2017. If the applicant intends to call witnesses, a summary of the witness’ intended evidence must also be filed and delivered.
Dated at Toronto, this 17^th^ day of November, 2017.
“Signed by”
Josée Bouchard
Vice-chair