Arias v. Desai (No. 1)
2002-09-30
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 Ligia Arias dated December 4, 2000 alleging discrimination in employment on the basis of sex, sexual harassment, sexual solicitation and reprisal.
B E T W E E N :
Ontario Human Rights Commission
- and -
Ligia Arias
Complainant
- and -
Sanjay Desai, 1329732 Ontario Ltd. o/a Comfort Suites Hotel
Respondents
INTERIM DECISION ________________________________________________________
Adjudicator:
Mary Ross Hendriks
September 30, 2002
Board File No.:
BI-0454-02
Decision No.:
02-018-I
APPEARANCES
Ontario Human Rights Commission
Amyn Hadibhai, Counsel
Ligia Arias, Complainant
Ligia Arias
1329732 Ontario Ltd, o/a Comfort Suites Hotel Corporate Respondent
Sanjay Desai
Sanjay Desai Personal Respondent
Anthony Barile, Counsel
INTRODUCTION
1This decision disposes of a motion brought by the Ontario Human Rights Commission ("the Commission") on September 26, 2002, seeking the following four orders:
(1)
an order that the respondents serve and file their pleadings forthwith;
(2)
an order that the respondents provide the Commission and the complainant with disclosure of all relevant documents in their possession;
(3)
an order that such disclosure by the respondents include a copy of the complainant's personnel file, the complainant's salary records, and the resignation letter of Patricia Bornais; and
(4)
an order allowing the Commission to call the evidence of Patricia Bornais by conference call during the hearing, as she works and resides in British Columbia.
BACKGROUND
2The Complaint before the Board of Inquiry ("the Board") is dated December 4, 2000. It alleges that the respondents infringed upon the complainant's right to equal treatment with respect to employment without discrimination because of sex; violated her right to be free from harassment in the workplace because of sex; denied her the right to be free from a sexual solicitation or advance made by a person in a position to confer, grant or deny her a benefit or advancement; and infringed upon her right to be free from reprisal for rejecting such a sexual solicitation or advance. In particular, the Complaint alleges that the termination of her employment subsequent to her rejection of these sexual advances constituted reprisal.
3On June 24, 2002, during the pre-hearing conference call, the Board directed both the personal and corporate respondents to make full disclosure and to serve and file their Responses by July 26, 2002. Despite correspondence between the parties, the respondents have failed to serve and file their pleadings or make disclosure to date.
THE MOTION
4The Commission served and filed a Motion Record and Factum in support of this motion. No written materials were filed by the respondents in response to the hearing of this motion. The respondents acknowledged that their pleadings and disclosure were late, and asked for a short indulgence.
5After hearing submissions, the Board specifically directed the respondents to produce the letter of resignation of Patricia Bornais. The respondents advised the Board that the letter was lost. The respondents do not dispute that Ms Bornais provided them with a letter of resignation, but claim to have no particular recollection of its contents. The Commission asked the Board to draw an adverse inference regarding the loss of this document. The Board declined to do so during the hearing of the motion but advised the Commission that it might make this submission during the hearing on its merits. The Board directed the Commission to speak to Ms Bornais and ask her to make best efforts to produce a copy of this letter.
ORDER
The Board directs:
(1)
the respondents to serve and file their Responses by October 7, 2002;
(2)
the respondents to make full production by October 7, 2002;
(3)
the respondents to produce the complainant's personnel file and salary records by October 7, 2002;
(4)
the Commission to speak to Ms Bornais and ask her to make best efforts to produce a copy of her letter of resignation lost by the respondents; and
(5)
Ms Bornais be permitted to provide evidence by way of conference call during the hearing, on the following conditions:
(i)
any exhibits to be relied upon or put into evidence by her must be sent to her prior to the hearing;
(ii)
she may have her own legal counsel with her during her testimony but no one else;
(iii)
she is not permitted to have any notes with her during the call, other than the intended exhibits;
(iv)
counsel for the Commission or the respondents may call her prior to the hearing to interview her since she is a witness, but she is not to have contact with anyone else;
(6)
All parties are to exchange correspondence naming the witnesses they intend to call, and such correspondence must include a brief summary of the evidence each witness will give. The parties are required to exchange this information by October 7, 2002. The request made by the respondents for exchange of formal willsays is denied; and
(7)
the hearing is to proceed on October 29 and 30th, 2002 in Windsor as previously scheduled, and the Board is not amenable to granting any adjournment requests if the terms of this interim decision are not met.
Dated at Toronto, Ontario, this 30th day of September, 2002.
___________________________ Mary Ross Hendriks, Vice-Chair