Tubbs v. Universal Workers Union, Labourers’ International Union of North America, Local 183, 2005 HRTO 16

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Anthony Tubbs

Complainant

-and-

Universal Workers Union, Labourers’ International Union of North America, Local 183, Daniel Avero, Roger Quinn, and Tony Dionisio

Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: May 25, 2005

Citation: 2005 HRTO 16

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168

APPEARANCES

Ontario Human Rights Commission ) No appearance

Anthony Tubbs, Complainant ) Winston Mattis, Counsel

Universal Workers Union, Labourers’ ) International Union of North America, Local 183 ) Daniel Avero, Roger Quinn, and Tony Dionisio ) Ron Lebi, Counsel Respondents, )

INTRODUCTION

1Mr. Tubbs (the “Complainant”) alleges that the Universal Workers Union, Labourers’ International Union of North America, Local 183 (the “Union Respondent”) and Daniel Avero, Roger Quinn and Tony Dionisio (the “Personal Respondents”) violated his rights under the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). Specifically, he alleges that his right to equal treatment with respect to membership in a trade union or vocational association without discrimination because of race and colour has been violated.

2In particular, he asserts that during a December 20, 1998 union meeting, while he was speaking to the membership about issues affecting minority union members at various job sites and how minority union members were treated in general, his comments were challenged by the Personal Respondent Dionisio, whom he alleges made a derogatory comment about the hiring of Jamaicans. Further, he alleges that at the conclusion of the meeting, he was approached by the Personal Respondents Mr. Avero and Mr. Quinn, and that an altercation took place between the Complainant and Mr. Avero.

3The Ontario Human Rights Commission (the “Commission”) referred the Complaint, dated June 17, 1999, for a hearing on the merits, to the Tribunal on February 6, 2004.

4The Respondents deny the allegations made by the Complainant that his rights under the Code have been violated by them in any manner. They deny that the Complainant was treated unequally with respect to membership in a trade union on the basis of colour or race because of any comments made to him during a union meeting by Mr. Dionisio. The Respondents also deny that Mr. Avero or Mr. Quinn engaged in any conduct at the union meeting that resulted in the Complainant being treated unequally with respect to membership in a trade union on the basis of colour or race.

5The Respondents question the credibility and reliability of the Complainant.

6The Tribunal began the hearing on the merits in Toronto on March 11, 2005.

7During the Complainant’s testimony, the Tribunal allowed him, by way of background, to testify as to matters involving allegations of discrimination based on race and colour that go beyond the allegations initially raised in the Complaint, despite the objection of counsel for the Respondents. Because his testimony covered a broader spectrum of evidence than the Tribunal anticipated, it granted the request brought by counsel for the Respondent, opposed by counsel for the Complainant and counsel for the Commission, to have an adjournment prior to commencing their cross-examination of Mr. Tubbs. As the Tribunal held during the hearing, it granted this adjournment because some of the new allegations that Mr. Tubbs made raise the spectre of a claim of reprisal, and thus, failure to grant a lengthy adjournment could cause the Respondents irreparable harm. In particular, the Complainant testified that his income as a labourer has declined due to this alleged reprisal.

8Counsel for the Complainant and counsel for the Commission advised the Tribunal that they may be bringing a motion to amend the Complaint to include an allegation of reprisal, but have not done so to date.

9On the last day of hearing as held thus far, being May 9, 2005, counsel for the Respondents indicated that he wanted the Complainant’s tax records for the relevant period of time. The Tribunal asked the parties to correspond with each other directly, and if they could not agree on production of his tax records, to bring a motion seeking same.

motion

10The Respondents have brought a motion, heard on May 24, 2005, by way of conference call, seeking:

(1) An Order directing the Complainant to produce his 2004 tax return to counsel for the Respondents within seven days of the date of this Order; and

(2) An Order directing the Complainant to immediately authorize counsel for the Respondents to obtain tax return information and tax assessment information regarding the Complainant for the years 1995 to 2004 from the Canada Revenue Agency by completing the Authorization attached as Exhibit 1, or alternatively

(3) An Order directing the Complainant, through his own counsel, to obtain copies of his tax returns and notices of assessment for the years 1995-2004 and to produce these documents to counsel for the Respondents by June 16, 2005.

11Counsel for the Respondents submit that the Complainant gave evidence regarding his earnings from 1997 to 2004, and that he alleges that his income declined after 1998 and that the Respondents were responsible for that decline and improperly interfered with his ability to earn an income. They argue that they are entitled to test this allegation against evidence that the Complainant has in his possession or over which he exercises some control.

12Counsel for the Respondents has requested this information by writing to counsel for the Complainant on three separate occasions, but has not received any response. These letters were attached to the Respondents’ Motion Record as Exhibits 2, 3, and 4. In addition, counsel for the Respondents left a message with counsel for the Complainant’s staff, but has not received a telephone call back.

13Counsel for the Respondents submits that the sought-after tax information cannot be obtained by summons by virtue of s. 241 of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.), as amended (the “Income Tax Act”) and that to do so, requires an Order from the Tribunal.

14Counsel for the Complainant did not oppose this motion. He has attempted to have his client execute the authorization to Canada Revenue Agency that Mr. Lebi seeks, but has been unable to reach him due to the hours the Complainant works on various construction sites. He did, however, ask that the Tribunal fashion the Order to contemplate the possibility that his client has yet to file his 2004 return, depending upon his year-end. He also advised the Tribunal that he leaves for a one-week holiday shortly, and will not be available to meet with his client.

15Counsel for the Commission was inadvertently absent from the conference call, and subsequently conveyed his apologies to Tribunal staff.

DECISION

16The Tribunal hereby orders Mr. Tubbs to execute immediately the Canada Revenue Agency form, marked as Exhibit 1, entitled, “Authorizing or Cancelling a Representative,” which gives consent to Mr. Lebi to obtain directly Mr. Tubbs’ tax records filed, if any, from 1995 to 2004. The Complainant is also ordered to produce his 2004 tax return to counsel for the Respondents within seven days of the date of this Order, if such return currently exists and is in his possession or under his control. The Tribunal also orders Mr. Lebi to provide copies of whatever tax records he obtains to counsel for the Complainant and counsel for the Commission.

ANALYSIS

The Duty to Disclose and the Relevance of Tax Records

17The new allegations made by the Complainant indicate that he believes that the Respondents have improperly interfered with his ability to earn an income, and thus raises the spectre of additional background facts to buttress his allegations made under s.6 of the Code, and a potential new allegation of reprisal being sought by his counsel pursuant to s.8.

18There is a general duty to give evidence relevant to the matters in issue, so that the truth may be ascertained: M. (A.) v. Ryan 1997 CanLII 403 (SCC), [1997] 1 S.C.R. 157. The test at common law for production is arguable relevance. Based on the facts herein, the Tribunal finds that the Complainant’s tax records for the period 1995 to 2004 meet that test.

19Rule 47 of the Tribunal’s Rules of Practice, July 2004, establishes its requirement for obtaining an order for particulars, as follows:

47. At any time in a proceeding, subject to determining any claim of privilege asserted, a panel may order any party to deliver to any other party particulars, physical or documentary evidence, expert reports, lists of witnesses and witness statements for the purpose of the hearing and anything else the panel considers appropriate for a full and satisfactory understanding of the issues in the proceeding.

20The Income Tax Act generally prohibits an official from divulging a taxpayer’s information, as per s.241(1) and (2), as set out below:

241. (1) Except as authorized by this section, no official shall

(a) knowingly provide, or knowingly allow to be provided, to any person any taxpayer information;

(b) knowingly allow any person to have access to any taxpayer information; or

(c) knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or for the purpose for which it was provided under this section.

(2) Notwithstanding any other Act of Parliament or other law, no official shall be required, in connection with any legal proceedings, to give or produce evidence relating to any taxpayer information.

21Thus, the Tribunal finds that counsel for the Respondents is correct that without an order of this Tribunal directing the Complainant to execute the Authorization, the Respondents are unable to obtain this information by way of summons.

ORDER

22For the reasons provided the Tribunal orders as follows:

(1) The Complainant must immediately execute and deliver the Authorization marked as Exhibit 1 to counsel for the Respondents, so that he can obtain the Complainant’s tax return information and tax assessment information, where available, for the years 1995 to 2004 from the Canada Revenue Agency directly; and

(2) Further, the Complainant must produce his 2004 tax return to counsel for the Respondents within seven days of the date of this Order, if such return currently exists and is in his possession or under his control.

23Counsel for the Respondent must provide copies of whatever tax records he obtains to counsel for the Complainant and counsel for the Commission.