Larrow v. 1147452 Ontario Ltd., 1999 CanLII 35110

Larrow v. 1147452 Ontario Ltd.

1999-07-23

BOARD OF INQUIRY ([Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html))

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;

AND IN THE MATTER OF the complaint and amended complaint by Cheryl Ann Larrow dated October 28, 1998 and November 10, 1998 respectively, alleging discrimination in employment because of sex and harassment by the respondents.

B E T W E E N :

Ontario Human Rights Commission

• and -

Cheryl Ann Larrow

Complainant

• and -

1147452 Ontario Inc. c.o.b. as Ashley's Optical and 1039199 Ontario Inc. c.o.b. as Bargain Optical, Dr. A. R. Sebastian and Sandra Elliott

Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar Date: July 23, 1999 Board File No: BI-0231-99 Decision No: 99-008-I

A P P E A R A N C E S

Ontario Human Rights Commission Sharon Ffolkes-Abrahams, Counsel

Cheryl Ann Larrow, Complainant On her own behalf

Bargain Optical (1039199 Ontario Inc.) and Dr. A.R. Sebastian, Respondents Dr. A. R. Sebastian on his own behalf and on behalf of Bargain Optical

Ashley's Optical (1147452 Ontario Inc.), Sandra Elliott, Respondent Sandra Elliott on her own behalf and on behalf of Ashley's Optical

1. This file involves the Complaint of Cheryl Ann Larrow (the "Complainant") against four named respondents: 1147452 Ontario Inc. c.o.b. as Ashley's Optical ("Ashley's"); 1039199 Ontario Inc. c.o.b. as Bargain Optical("Bargain"); Dr. A.R. Sebastian ("Sebastian"); and Sandra Elliott ("Elliott").
2. The Complaint relates to discrimination in employment. Among other things, the Complainant alleges that, in the summer of 1996, Sebastian made unwanted sexual advances toward her and that her employment was terminated after she communicated to him that these advances were unwelcome.

May 3, 1999 Conference Call

1. The Board of Inquiry's hearing into this matter was initially convened by conference call at 8:30 a.m. on May 3, 1999. Elliott represented herself and Ashley's while Sebastian represented both Bargain and himself.

I. Respondents' Position

1. During the course of the May 3 conference call the Respondents took strong exception to the naming of Ashley's and Elliott as Respondents. They asserted that the Complainant's employment relationship was with Bargain and, therefore, Ashley's and Elliott were, legally speaking, strangers to this proceeding. After I explained that I could not dismiss the case against any of the Respondents on that basis without proper notice to the other parties and without evidence, the Respondents indicated they would bring a motion to seek that relief. In the meantime, it was agreed among the parties that the Respondents would provide the Commission with the documentary materials they were relying on in support of their position. Upon review of these materials the Commission and Complainant would consider whether they could consent to the motion.
2. The Respondents also took strong exception to the Commission's identification of Dionne Sebastian as having anything to do with this Complaint. I note that Ms. Sebastian is not named as a Respondent but merely identified as a director of Bargain and its representative for the purposes of the hearing. At the May 3 call Sebastian clarified that he represents Bargain for this purpose.

II. Commission's Position

1. The Commission also indicated its intention to bring a motion seeking to amend the Complaint to specify two additional grounds of relief.

Conference Call Memorandum

1. The content of the discussion on the May 3, 1999 conference call was reduced to writing and issued to the parties in a Memorandum dated May 3, 1999 ("the Memorandum"). A copy of the Memorandum is attached to this decision.
2. On agreement, a further conference call was scheduled for 8:30 a.m. July 20, 1999. The July conference call would address the following matters:

• Any motions, notices of which were to be served and filed by July 15, 1999 (see Paragraph 9 of the Memorandum);
• Whether the Respondents consented to mediation (see Paragraph 12 of the Memorandum); and
• Identification of witnesses; estimates of length of hearing; and scheduling of hearing dates (see Paragraph 8 of the Memorandum).

1. As set out in the Memorandum and in accordance with the Board's Rules of Practice, the Respondents were required to serve and file their Responses by June 28, 1999. Sebastian agreed to provide documentary disclosure by the same date. Elliott indicated that she would retain a solicitor to advise whether her documentary disclosure could be provided by June 28, 1999. Elliott also undertook to advise the Board and the other parties in writing as soon as she had retained counsel. (See Paragraphs 3, 6, 7, and 11 of the Memorandum).

Notices of Motion filed

1. On July 15, 1999 the Commission served and filed a Notice of Motion seeking to amend the Complaint to refer specifically to sections 7(3)(a) and (b) of the Code.
2. On July 19, 1999, the Board received a document on Sebastian's letterhead. Although identified as a Motion Record, it appeared in fact to be a Notice of Motion to have Ashley's, Elliott and Dionne Sebastian removed as Respondents to the Complaint. Notwithstanding the Board's Rules of Practice and the clear language of the Memorandum, it was neither timely nor served on the other parties.

July 20, 1999 Conference Call

1. The conference call on July 20, 1999 began approximately 15 minutes late, due to the tardiness of the Respondents.
2. No Responses were served or filed. The Respondents indicated that, notwithstanding the Board's Rules of Practice and the clear language of the Memorandum, they did not intend to file Responses until such time as the Board had determined whether Elliott and Ashley's were proper parties to this proceeding. I note there is no dispute about the party status of Sebastian or Bargain. Therefore Sebastian and Bargain are ordered to serve and file their Response(s) to the Commission's Statement of Facts and Issues by August 6, 1999.
3. I ordered Sebastian to serve the Commission and the Complainant with his motion materials by facsimile transmission to Commission counsel after the conclusion of the conference call. I ordered Commission counsel to advise the Board and the other parties in writing by July 23, 1999 if she or the Complainant opposes the motion in whole or in part. If the motion is opposed, the Deputy Registrar of the Board of Inquiry will contact the parties to schedule a date when it may be heard, either by teleconference or in person. On the date fixed for the motion, the parties will also be expected to provide the information specified in Paragraph 8 of the Memorandum.
4. As already noted, the Respondents were in default of their obligations to file their Responses and had not served and filed their Notice of Motion in a timely way. In addition, they were unable to advise whether they consented to mediation. Despite having received a timely Notice of Motion from the Commission they were unwilling or unable to express their position on the motion. Sebastian admitted that he had not even opened the envelope containing the Commission's motion materials. Elliott indicated that she could not take a position on the motion until she had consulted a lawyer, and that she had an appointment scheduled for the afternoon of July 20, 1999.
5. At this point, approximately 45 minutes after the scheduled commencement of the conference call, I asked Elliott if she was requesting an adjournment of the conference call and she indicated that she was. Her request was opposed by Commission counsel. I refused to grant the adjournment for the following reasons:

• On May 3, 1999, Elliott indicated that she would be seeking counsel.
• The Memorandum clearly contemplated that she would do so on or before June 28, 1999, by which point her counsel was to advise if she and Ashley's were in a position to provide documentary disclosure by that date. (See Paragraph 7 of the Memorandum).
• From May 3, 1999, Elliott knew that the July 20, 1999 conference call had been scheduled, and knew what matters would be addressed at it.
• From July 15, 1999, she knew that the Commission would be proceeding with its motion on July 20, 1999.
• At no time prior to the commencement of the conference call, and not indeed until the Commission was ready to make its submissions, did she request an adjournment, even though she had been apprised from the May 3, 1999 conference call that adjournment requests could be made. (See Paragraph 10 of the Memorandum).

1. The Commission made submissions in support of its motion to amend the Complaint. The Complainant supported the motion, but made no submissions of her own. The Complaint cited s. 5(1), 7(2) and 9 of the Code as having been contravened by the Respondents' alleged conduct. The Commission sought to add s. 7(3)(a) and (b) as other sections that might, on the basis of the same factual allegations, also ground a contravention of the Code. The Commission submitted that s. 39 of the Code confers on the Board the jurisdiction to make such an amendment, and that I ought to do so, absent any real prejudice to the Respondents. It was further submitted that no such prejudice could exist for the reason that the amendment did not seek to add new factual allegations, but merely a new basis for liability on those same facts.
2. Sebastian indicated that the motion sounded redundant, that it added nothing and was "the same complaint all over again". Indeed Sebastian's only concern was that Commission counsel in her submissions identified him as the Complainant's "employer". His position is that he was a fellow employee of Bargain. I indicated that the issue was not whether he was an employee or employer, but whether he was in a position to "confer, grant or deny a benefit or advancement" to the Complainant (see s. 7(3)(a) and (b)). If that issue is in dispute, it can only be decided by the Board after hearing all the relevant evidence.
3. Following Sebastian's submissions on the Commission's motion, I asked Elliott for her submissions. She had, however, chosen to absent herself from the conference call to deal with a customer. I indicated that if Elliott did not return to the conference call within three minutes she would forfeit her right to make submissions. She did return within that period, but indicated that she had nothing to say, because she did not understand the Commission's submissions. It is unclear, what portion, if any, of those submissions she actually heard prior to absenting herself.
4. I allowed the Commission's motion in an oral ruling.

Conclusion

1. I am extremely concerned about the cavalier attitude that the Respondents are taking to the adjudication of this case. They have not complied with a single one of the obligations imposed upon them by the Board's Rules of Practice or agreed to during the May 3, 1999 conference call as detailed in the Memorandum. They were completely unprepared to deal with any of the matters set for consideration on the July 20, 1999 conference call. I appreciate that they have no legal training. They did however have the benefit of the Board's Rules, the May conference call when those rules were explained, and the Memorandum. Furthermore, they have had ample opportunity since May to consult legal counsel if they felt it necessary.
2. Elliott's failure to consult legal counsel in a timely fashion and her decision to absent herself from portions of the conference call, and Sebastian's failure to even read the Commission's motion material, are not in their best interests. I strongly recommend that they both reconsider their approach to the litigation of this complaint. The Board will treat all parties which appear before it fairly and with courtesy. The same is expected from parties in their dealings with the Board and with each other.

Mary Anne McKellar Member, Board of Inquiry