Fiorini v. Di Poce Management Ltd. (No. 1)
BI-0097-96
1996-11-07
ONTARIO BOARD OF INQUIRY
Date: 19961107 File No.: BI-0097-96 Neutral Citation: 96-038
BETWEEN:
Monica Fiorini Complainant
AND:
Ontario Human Rights Commission Commission
AND:
Di Poce Management Limited, John Di Poce, Karen Stewart Respondents
Adjudicator: Mary-Woo Sims
Counsel for the Commission: Cathryn Pike
Counsel for the Complainant: Paul Wise
Counsel for the Respondents: Peter Israel and Christopher Andree
INTERIM DECISION
- This interim decision deals with three issues raised during the case management prehearing of October 21, 1996. They are: amending the complaint; recording and providing the transcript of the proceedings; and disclosure of certain documents. I shall now deal with the issues in turn.
Amending the complaint
- Upon the agreement and consent of the parties that there is no allegation of discrimination because of family status, the complaint has been amended to strike paragraph 13 from the complaint. In addition, paragraph 12 is now amended to cite sections 6(2) and 8 of the Human Rights Code (the "Code")
The recording and provision of the transcript of the proceedings by the Board of Inquiry
At the commencement of the hearing by conference call on June 20, 1996, the parties were advised that the Board of Inquiry no longer provided a court reporter at hearings. Furthermore, in accordance with its Procedures for Recording Hearings (the "Procedures"), "Recording of hearings will be provided when necessary to accommodate an adjudicator, counsel, individual party or key advisor to a corporate party, who, due to a disability, is unable to take adequate notes during the hearing." No requests for accommodation were made.
At the case management prehearing Respondents' counsel asked me to consider recording the proceedings and providing a transcript to the parties. According to the Board of Inquiry's Procedures, the recording of hearings may be provided if it is as a result of a request for accommodation. Further, I have the discretion to record the proceedings and may order a transcript, if in my opinion, the complexity of the evidence or other factors makes the recording of the hearing sufficiently helpful to the parties and to me. In the event that the hearing is recorded by an electronic recorder, copies of the tapes will be provided to the parties who so request, but no transcripts of the tapes will be provided.
Respondents' counsel submitted that section 42(2) of the Code requires the Board to maintain a record of proceedings and to provide a transcript of the oral evidence taken before it in the event that an appeal of a decision of the board is filed with the Divisional Court. He submitted that since it is the Board's obligation to provide a record to the Divisional Court, the Board ought to be recording the evidence and producing a transcript of the proceedings as a matter of course. The parties could then request copies of the transcripts. This would assist the parties in determining if an appeal is warranted and lessen their costs. No case law was presented by counsel to support his argument.
Both counsel for the Commission and for the Complainant took no position with respect to this matter.
Section 42(2) of the Code reads:
42(2)
Where notice of an appeal is served under this section, the board of inquiry shall forthwith file in the Divisional Court the record of the proceedings before it in which the decision or order appealed from was made and the record, together with a transcript of the oral evidence taken before the board if it is not part of the record of the board, shall constitute the record in the appeal.
In my view, section 42(2) of the Code concerns the obligations of the board of inquiry to file a record with the Divisional Court in the event that there is an appeal. Although I may agree with Respondents' counsel that the provision of transcripts by the board of inquiry to the parties, as a matter of course may be helpful, it is my view that there is no obligation under section 42(2) of the Code to do so.
My view is further supported by the fact that section 40 the Code, prior to the most recent amendments, contained the following wording "The oral evidence taken before a board at a hearing shall be recorded, and copies of a transcript thereof shall be furnished . . .". This section of the Code was repealed by the Ontario legislature in 1994 thereby removing the onus on the Board to record proceedings and provide copies of a transcript.
Even though the Procedures allow me the discretion to order that the proceedings be recorded, I am not prepared to do so in this case. None of the parties have requested accommodation due to a disability and there have been no submissions made that " . . .the complexity of the evidence or other factors makes the recording of the hearing sufficiently helpful to the parties and to me". As a result, I am not prepared to order that the proceedings be recorded.
An order for disclosure of certain documents
Counsel for the Respondents seeks an order for disclosure of business and financial records related to the complainant's husband's (Mr. Fiorini) business, Sanica Investments Inc., operating as New Image Creations. The documents being requested include bookkeeping entries, financial statements, receivables, payables, business income tax statements, dividends paid to shareholders and ledger entries. Counsel advised that there was reason to believe that Ms Fiorini had done some work for Mr. Fiorini while she worked for the Respondents and also after she left. He wanted to avoid having to subpoena Mr. Fiorini in this regard. Counsel submitted that an expert, reviewing the handwritten entries in the documents, could determine which entries had been made by Ms Fiorini and that this would assist him and his clients in determining if, and how much time, Ms Fiorini spent working for Mr. Fiorini. He argued that the onus is on the employer to show that the complainant's mitigation efforts were such that the damages being sought were not warranted. This review of Mr. Fiorini's business documents would go to determining Ms Fiorini's efforts at mitigating her damages. Counsel argued that he should not have to rely only on Ms Fiorini's viva voce evidence concerning her mitigation efforts.
Respondents' counsel also submitted that the documents requested may be of assistance to me in assessing Ms Fiorini's credibility. For example, if Ms Fiorini were to testify that a particular task or set of tasks performed for her husband's company took 10 minutes every 2 weeks therefore leaving her with the rest of the time for finding alternate work, and an expert were to say that the task(s) could not have been performed in that amount of time, but more likely took 6 hours every day, this would assist me in assessing credibility.
Commission counsel argued that I should not grant the order for disclosure. She submitted that the request for Mr. Fiorini's business records was intrusive as Ms Fiorini has already agreed to provide information concerning her income in the form of her income tax returns and T4's. Information has already been, and will continue to be, provided by Ms Fiorini to Respondents' counsel concerning her efforts at mitigation. Counsel submitted that the issues before me are whether Ms Fiorini was discriminated against because of pregnancy or was there another reason? If I determine that Ms Fiorini was discriminated against, then issues related to damages and mitigation should be probed. She submitted that the hearing will be unnecessarily lengthened if there is extensive questioning at this point concerning her availability for work and earnings. Furthermore, she submitted that the information being sought will be of no probative value concerning Ms Fiorini's credibility, availability for work and earnings as she does not believe that a number of handwritten entries will provide that information. Commission counsel suggested that the hearing be bifurcated. The first part of the hearing would be to enquire into whether discrimination contrary to the Code occurred. The next part, if the Commission and Complainant's case was proved, would be to address the issue of damages and mitigation.
Complainant's counsel adopted the position of the Commission and made no further submissions.
Respondent's counsel opposed Commission counsel's suggestion that the hearing be bifurcated. He argued that the request for documents was not just based on issues related to damages and mitigation but also on credibility and that he is entitled to conduct a full cross examination of Ms Fiorini.
I do not agree that granting the order for disclosure of Mr. Fiorini's business and financial records will assist me in assessing the overall credibility of witnesses. In this instance, the probative value of the records is outweighed by the intrusive nature of the request.
While the request for an order for disclosure of the documents is not relevant to the issue of discrimination, it may be relevant to the determination of damages and mitigation. I am not prepared to rule on this request at this time as I believe it ought to be dealt with after a determination has been made as to whether discrimination, contrary to the Code, has occurred. It is without question that a Tribunal or Board has the power to control its own proceeding. I am therefore ordering that the hearing be bifurcated. I will consider this request and hear further submissions, if there are any, related to damages and mitigation if and when I determine that a breach of the Code has occurred.
ORDER
- The hearing is bifurcated.