Board of Inquiry (Human Rights Code)
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 by Mini Chacko, dated January 30, 1996, amended March 21, 2000 alleging discrimination in employment on the basis of sex by Transpharm Canada Inc. (COB as Toronto Institute of Pharmaceutical Technology), Mr. Alex MacGregor and Mrs. Nneka MacGregor;
AND IN THE MATTER OF the complaint of Dr. Indar Maharaj, dated August 22, 1995 alleging discrimination in employment on the basis of reprisal by Transpharm Canada Inc. (COB as Toronto Institute of Pharmaceutical Technology), Mr. Alex MacGregor and Mrs. Nneka MacGregor.
B E T W E E N:
Ontario Human Rights Commission
-and-
Mini Chacko and Dr. Indar Maharaj
Complainants
-and-
Transpharm Canada Inc. (COB as Toronto Institute of Pharmaceutical Technology), Alex MacGregor and Nneka MacGregor
Respondents
INTERIM DECISION
Adjudicator: Mary Anne McKellar Date: May 11, 2001 Board File No.: BI-0348/349-00 Decision No.: 01-011-I
Board of Inquiry (Human Rights Code) 505 University Avenue 2nd Floor, Toronto ON M5G 2P3 Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743 TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168
A P P E A R A N C E S
Ontario Human Rights Commission ) Sharon Ffolkes Abrahams, Counsel Dr. Indar Maharaj, Complainant ) on his own behalf Mini Chacko, Complainant ) on her own behalf Transpharm Canada Inc. (COB as Toronto Institute of Pharmaceutical Technology), Alex MacGregor and Nneka MacGregor, Respondents ) William Gale, Counsel
INTRODUCTION
This interim decision disposes of two motions: the Respondents’ objection to the admissibility of certain “similar fact” evidence; and the Respondents’ objection to the admissibility of evidence pertaining to the academic credentials of the Personal Respondent, Alex MacGregor, specifically the proposed testimony of Ursula Garmann.
DECISION
The Board previously ruled that the proposed similar fact evidence was inadmissible. Its reasons for that decision are set out below.
For the reasons set out below, the Board finds that the evidence pertaining to the academic credentials of the Personal Respondent, Alex MacGregor, is irrelevant and therefore inadmissible.
THE FACTS
This hearing relates to the Complaints of two former employees of the Corporate Respondent, which operates a private vocational institute, the Toronto Institute of Pharmaceutical Technology (“TIPT”). The Personal Respondents are spouses and are the directing minds of the Corporate Respondent.
For the purposes of determining these motions, the parties’ positions with respect to the Complaints may be stated briefly.
The Complainant Mini Chacko alleges that she was terminated because of pregnancy. The Respondents contend that she was dismissed for incompetence. Pursuant to the Board’s earlier interim decision dated February 9, 2001 (“the First Interim Decision”), the Respondents particularized the nature of Chacko’s alleged incompetence at the outset of the hearing on February 12, 2001. Their position is that she lacked the self-confidence and assertiveness required for the position of lab technician, and that she failed to bring any enthusiasm or initiative to the position.
The Complainant Indar Maharaj alleges that he was terminated because he challenged the Respondents’ decision to terminate Chacko and confronted them with the fact that the termination was predicated on her pregnancy. The Respondents deny Maharaj’s version of his involvement in Chacko’s termination, and say that he was terminated from his position as a lecturer for the following reasons: he would not effectively convey the necessary information to students; his lecturing style was patronising, arrogant, indifferent, confusing and reflective of poor content; and his attention to his lectures and the time spent preparing for them was diverted or distracted as a result of outside vocational activities involving teaching at another institution and using the Corporate Respondent’s time to learn pill-making techniques to advance his own illegal manufacture of controlled substances rather than teaching. As was the case with Chacko, these particulars were provided at the hearing on February 12, 2001 pursuant to the Board’s direction in its First Interim Decision.
SIMILAR FACT EVIDENCE
The Proposed Evidence
The Commission seeks to introduce the evidence of other former TIPT employees with respect to the circumstances surrounding their cessation of employment, including their relations with the Personal Respondents, and the latters’ behaviour following the cessation of employment.
The Parties’ Positions
The Commission submitted that the proposed evidence would tend to establish a pattern of conduct on the part of the Respondents towards its employees and would tend to establish the Complaints. In particular, the Commission asserted that the evidence would establish the following:
There was a system at TIPT where the employer would become vindictive whenever an employee disagreed with the MacGregors, and would find a reason for dismissing that employee, would withhold money owing to the employee, and would give the employee a hard time at U.I.
Respondents’ counsel took the position that the proposed evidence did not satisfy the criteria for admission of similar fact evidence. He suggested that all the proposed evidence tended to establish was that TIPT was a “creepy or mean-spirited employer”, a matter which is outside the jurisdiction of the Board to deal with. It did not satisfy the requirement that similar fact evidence must be probative of the conduct impugned in the proceeding.
The Analysis
The propositions underlying the so-called “similar fact rule” may be briefly stated. Generally speaking, evidence going to a party’s character or reputation is not relevant and not admissible. In some circumstances, however, evidence that the party whose behaviour is now impugned has previously acted in a manner similar to that currently alleged is admissible. Whether such evidence is admissible is a discretionary decision, requiring the probative value of the evidence to be assessed against its potential prejudicial effect.
In order to assess the probative value of the evidence, regard must be had to the facts required to be proved. In this case, Maharaj alleges that his employment was terminated because he took issue with the Respondents’ decision to terminate Chacko and challenged that decision as connected to the fact of her pregnancy. The Respondents deny that Maharaj took issue with their performance review of Chacko and decision to terminate her.
The evidence sought to be adduced pertains to former employees of TIPT whose employment ceased after Maharaj’s termination. The Commission proposes to have them testify about how the Personal Respondents reacted when those employees disagreed with them over some issue. This evidence does not go to the central fact in dispute, which is whether Maharaj did disagree with the Respondents and come to Chacko’s defense, as he alleges. Even if the Respondents’ post-employment treatment of Maharaj was similar to those who can claim to have disagreed with the Respondents, that does not tend to establish that Maharaj disagreed with them over Chacko and that that was the cause of his termination.
In any event, the Board does not view the proposed evidence as sufficiently “similar” to qualify under the rubric of similar fact evidence. Chacko, who did not disagree with the MacGregors at all, testified that she was treated in the same way as Maharaj following her termination. Furthermore, Kyle Bouchard, the witness whose testimony prompted these objections, was not terminated, but voluntarily left his employment at TIPT.
All the proposed evidence tends to establish is that the Respondents were not good employers and resisted fulfilling their statutory obligations to departing employees. There is no nexus to a material fact in dispute in this proceeding.
ALEX MACGREGOR’S ACADEMIC CREDENTIALS
The Proposed Evidence
The Commission seeks to introduce evidence to establish that although Alex MacGregor holds himself out as possessing a M.Sc. and a PhD, he has not been awarded those degrees and his diplomas are forgeries. In the course of Maharaj’s examination in chief, the Commission introduced two letters Maharaj received from Ursula Garmann, of the University of London’s transcripts/records office. Respondents’ Counsel did not object to the introduction of the letters, but he asked the Board to note his position that the contents were hearsay. The letters indicated that Alex MacGregor does not appear in the University’s list of MSc graduates for 1986 or PhD graduates for 1989, and, furthermore, that a copy of a PhD diploma bearing Alex MacGregor’s name did not appear to be genuine. The Commission proposed to introduce affidavit evidence of Garmann in connection with these matters, but Respondents’ Counsel objected to the evidence being adduced in that form, or indeed at all. Consequently, the Commission has now indicated its intention to call Garmann to give viva voce evidence in this proceeding.
The Parties’ Positions
The Respondents take the position that Alex MacGregor’s academic credentials are irrelevant to the issues of whether Chacko was terminated because of her pregnancy and Maharaj was terminated in reprisal for his support of her. They say that the evidence is collateral to the issues in this proceeding and is solely aimed at impugning the credibility of Alex MacGregor.
The Commission takes the position that the evidence is relevant to Alex MacGregor’s competence to make an assessment of Maharaj’s competence as a lecturer, which was the stated reason for his termination at the time of that termination, and was also particularized before the Board as a reason for that termination. As Commission Counsel stated, “whether Alex MacGregor is capable of judging [Maharaj’s competence as a lecturer] is at the analytical centre of what the Complainants are saying and what this [Complaint] is about”.
The Analysis
The Commission and Maharaj sought pre-hearing disclosure of documents pertaining to Alex MacGregor’s academic credentials. In its First Interim Decision, the Board ordered such disclosure on the grounds that the documents were arguably relevant to the issue of Alex MacGregor’s ability to assess the competence of the Complainants’ performance. This order was made prior to the Respondents’ particularizing the nature of the Complainants’ performance deficiencies, and the First Interim Decision contained the following caution:
The mere fact that the Board has found the documents to be arguably relevant for the purposes of pre-hearing disclosure does not necessarily mean that they will be admissible in evidence at the hearing. The Board notes that the pleadings do not reveal the nature of the alleged defects in the Complainants’ performance that the Respondents say they relied on in terminating them. If, for example, one such issue related to excessive absenteeism or lateness, it would be hard to imagine how Mr. MacGregor’s PhD or lack thereof could be pertinent to his assessment of that employment deficiency.
As noted earlier, the Respondents particularized the Complainants’ alleged incompetencies at the outset of the hearing on February 12, 2001. From those particulars, there is no doubt that the evidence respecting Alex MacGregor’s academic credentials has no relevance whatsoever to his ability to assess Chacko’s performance, as the enumerated deficiencies related exclusively to her attitude and personality. With respect to the alleged performance deficiencies of Maharaj, Alex MacGregor’s substantive knowledge base could only possibly be relevant to his assessment of Maharaj’s lecturing deficiencies, and even there, only to the Respondents’ contention that there was poor content in them. Maharaj’s testimony has concluded. Necessarily, all of the shortcomings the Respondents allege with respect to his lecturing style and content have been put to him. A videotape of a portion of one of Maharaj’s lectures to a remedial science class was put to him, and he was cross-examined with respect to the accuracy of two items of information conveyed therein.
The Personal Respondents are clearly the directing minds of TIPT. Whatever Alex MacGregor’s academic credentials, all decisions respecting hiring and firing appear to have been made by the MacGregors and they directed all staff. His decisions as an employer respecting the performance of his employees is not necessarily suspect merely because those employees possess academic credentials superior to his own.
If Alex MacGregor had no knowledge whatsoever of the subject areas being taught by Maharaj, however, then the bona fides of his criticisms of Maharaj’s performance based on lecture content and the justification for Maharaj’s termination might be suspect. The difficulty the Board has is with the Commission’s equation of academic credentials with relevant knowledge. One can obtain a PhD in any of a number of different subject areas or in any of a number of subspecialties within a scientific discipline. The mere possession of the degree does not indicate the knowledge base of the degree holder. Furthermore, a Phd candidate who does all the preparatory study and research but does not defend his or her thesis may well have the same knowledge base as one on whom the degree is conferred.
The Commission’s position appears to be that because Maharaj has a PhD and, it contends, MacGregor does not, Maharaj must always be presumed to be correct where there are disputes as to the scientific content of his lectures. The Board does not accept this proposition. It notes, first of all, that the lecture that became the locus for the dispute respecting content was given in a basic science course, not an advanced one. It doubts whether a PhD even in a related subject area could ever reasonably be construed as a requirement for assessing the content of such a course. Even with identical academic credentials, MacGregor and Maharaj might still disagree about some lecture content. In response to a question posed by the Board, the Commission said that the situation described in the last sentence would represent “an honest disagreement”, but that the situation would be different where the two possessed different academic credentials. The Board inclines to the view that the information imparted is either the kind which can be characterized as correct or incorrect, or it is of the kind where there is some academic debate or disagreement. The quality of the information imparted is independently verifiable, however, and has nothing to do with the credentials of the person uttering it.
The Board notes that if the possession of a PhD were a pre-requisite to the legitimacy of assessment of Maharaj’s lectures, then the evidence of his former students adduced by the Commission would be worthless.
MacGregor’s academic credentials are not relevant. The evidence of Ursula Garmann is not admissible, nor is any other evidence pertaining to this issue.
Respondents’ Counsel noted that if Alex MacGregor’s academic credentials are not relevant to his ability to assess Maharaj’s performance, then evidence respecting them could only go to MacGregor’s credibility, and that evidence would be inadmissible because it relates to credibility on a collateral fact. The Board agrees.
ADDITIONAL COMMENTS
The conflicts among these parties are wide-ranging, particularly as between the Respondents and Maharaj. It would be a gross understatement to say that there is no love lost between them. Aspects of the issues raised in various proceedings involving the Respondents and in which Maharaj is either a party, has participated, or in which the Respondents suggest he has participated have found their way into the evidence adduced before the Board. These include criminal proceedings, superior court proceedings, at least two small claims actions, professional regulatory proceedings, and complaints to the Ministry of Education.
The Board’s jurisdiction is narrowly confined to the issues of whether Chacko was terminated because of her pregnancy, and whether Maharaj was terminated as a reprisal for his defence of her. Very little of the evidence relating to the broader disputes is relevant to these central inquiries. The Board is concerned at the amount of hearing time that has been occupied in dealing with them. In particular, it wishes to comment on two secondary issues that have consumed a fair amount of hearing time.
Maharaj appears to wish to impugn the quality of the vocational training offered by TIPT. Respondents’ Counsel in fact suggested that this was the real reason for seeking to introduce evidence respecting Alex MacGregor’s academic credentials. The Board understands that this was at issue in a small claims court proceeding involving the Respondents and one of the Commission’s witnesses. Maharaj and other of the Commission’s witnesses also testified in that proceeding. That issue is beyond the jurisdiction of this Board, although evidence touching upon these matters has been adduced as it affects the context in which the Complainants performed their duties. The Board wishes to take this opportunity to remind the parties that it will be making no findings whatsoever respecting the quality of TIPT’s instructional programme or laboratory equipment. Careful thought should be given before any party lengthens these proceedings by adducing evidence on these matters except for the limited purpose described above.
Similarly, the Respondents raised the issue of criminal proceedings pending against Maharaj with respect to certain activities alleged to have occurred in his home lab. The Board reminded all parties at the time that this issue arose that it has no jurisdiction to determine whether Maharaj committed any criminal offence. The Board’s sole interest in this subject area is the implications it may have on the Board’s assessment of Maharaj’s mitigation efforts and income earned during the period for which he is claiming to recover lost wages from the Respondents. If knowledge of these alleged activities came to the attention of the Respondents subsequent to their decision to terminate Maharaj, such activities cannot be relied on to justify the termination.
Dated at Toronto, Ontario this 11th day of May, 2001.
“Mary Anne McKellar”
Mary Anne McKellar, Vice-Chair