HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Lindsay Earhart
Complainant
-and-
Nutritional Management Services Limited, Dan Thompson, Brian Burns, Sharon Lyonnais
Respondents
INTERIM DECISION
Adjudicator: Mary Anne McKellar
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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
Introduction
1This is a complaint alleging both discrimination on the basis of, inter alia, sex and alleging reprisal. Generally speaking, the complainant alleges that in her employment with the Corporate Respondent she was subject to sexual harassment and/or a poisoned work environment, and that the employer or its personnel were not sufficiently responsive to concerns she raised about these issues. The Complainant also claims that her employment was terminated because she raised these concerns.
Background to this Decision
2The parties exchanged pleadings. I convened a conference call on August 22, 2005, in which all parties with the exception of the personal respondent, Sharon Lyonnais, participated. At that time I directed them to prepare and exchange “lists of witnesses identifying: the name [of] the individual witnesses each intends to call; the matters about which that witness is expected to testify; and the anticipated length of the testimony”. I also invited them to make submissions on how the hearing might be expedited and, in particular, on whether it made sense to bifurcate it as between questions of liability and remedy. The Commission and the Complainant and the Corporate Respondent and the personal respondents, Burns and Thompson, have now provided their lists of witnesses, although the Commission and the Complainant take the position that the responding parties have not provided adequate information with their witness list. With respect to the issue of bifurcation, the Commission and the Complainant take the position that there should be no bifurcation, while the Responding Parties submit that I should bifurcate. The Commission has also questioned the relevance of certain evidence the Respondents intend to call respecting the Corporate Respondent’s anti-harassment policy and complaints dealt with under it, and has requested that I convene another conference call to deal with these matters. Rather than accede to that request immediately, it seems to me to be both more expedient and appropriate to first attempt to deal with certain case management issues in writing.
Proposed Structure of Hearing
3It is clear from the pleadings that all parties agree that the complainant was employed by the Corporate Respondent from some time in 2000 until her employment was terminated in December 2001. The complainant alleges that various conduct engaged in by Burns during that time amounted to prohibited harassment under the Human Rights Code. She also alleges that she raised concerns with Burns and Lyonnais about the behaviour of other individuals and that these two Personal Respondents were unresponsive to her concerns. As well, the Complainant alleges that the circumstances of her termination constituted a reprisal under the Code.
4Having reviewed the pleadings and the witness lists, I am not persuaded that it would necessarily be more expedient to simply bifurcate this hearing as between issues of liability (whether any provision of the Code has been contravened) and remedy (what the consequences of any such contravention should be), particularly since some of the witnesses to be called by the Commission and Complainant will be addressing matters related to both issues in their testimony. It does seem to me, however, that it may be possible and desirable to adjudicate the question of liability for the reprisal claim separate and apart from the questions of liability pertaining to alleged harassment/poisoned work environment, and separate and apart from any issues respecting remedy. My reasons for suggesting that liability for reprisal might be dealt with first can be briefly stated.
5The responding parties dispute the extent to which (if she did so at all) the complainant raised concerns with them about harassment in the workplace prior to her termination. Their contention is that her termination could not constitute reprisal under the Code in the absence of her having previously sought to “claim” or “enforce” her rights under the Code by raising such concerns or making a complaint. It appears to me on a review of the pleadings that these factual issues – whether; when; to whom in the workplace; and about what the complainant raised concerns – would require a relatively circumscribed factual inquiry. Furthermore, their resolution might helpfully clarify what is at stake in this proceeding for the workplace parties, since I note that the complainant seeks both an award of general damages as well as significant wage losses as redress for the alleged reprisal. In other words, the determination of this aspect of the case might assist in the resolution of the balance of the complaint. Although the witnesses who would be testifying about these issues might also have to testify about the harassment/poisoned work environment issues, it is not apparent to me that their potentially having to testify twice would cause any great inconvenience, since it appears to me that the witnesses to be heard from on this topic would be the parties, who will presumably be in attendance throughout the proceeding in any event.
6I therefore propose that I hear and determine whether the termination of the complainant constituted a reprisal prior to hearing any evidence with respect to whether the workplace was poisoned or whether harassment occurred, and before hearing any evidence that might go to remedy. Any party having objections or concerns or seeking clarification with respect to the manner of proceeding, I have proposed, should set those matters out in writing and communicate them to the other parties and the Tribunal by no later than October 24, 2005.
Particulars Directed
7I have examined the pleadings relating to the reprisal question, and they appear to me to be wanting in particularity. I am therefore directing the complainant and/or Commission to provide particulars in writing with respect to the following:
Further to the allegation in paragraph 12 of the Commission’s pleadings, when did the complainant allegedly complain to Burns and Lyonnais about a customer’s harassing behaviour;
Further to the allegation in paragraph 14 of the Commission’s pleadings, when and to which supervisor did the Complainant complain about alleged harassment by Burns;
Further to the allegation in paragraph 15 of the Commission’s pleadings, when did the complainant first complain to the respondents about Burn’s behaviour, and to whom were her concerns raised; and
Further to the allegations in paragraphs 16 and 17 of the Commission’s pleadings, what is the nature of the alleged inappropriate treatment and comments from her supervisor that the Complainant was subjected to, and to whom precisely did she raise her concerns about them?
8The responding parties have alleged that the complainant did not raise the issue of harassment with them until some months after her termination. They are directed to provide particulars in writing with respect to the following:
When did the respondents, or any of them, first learn of the complainant’s allegations of harassment or sexual discrimination;
How did they learn of those allegations; and
To whom, if any of them, did the complainant directly communicate her complaints?
The particulars directed above are to be served on the other parties and filed with the Tribunal by no later than October 24, 2005.
Outstanding Issues Respecting Witness Lists
9I have reviewed the witness list supplied by the respondents. While it is complete insofar as naming the witnesses the respondents intend to call, indicating the anticipated length of their testimony, and identifying in an abstract way the conceptual issues to which their testimony pertains, I had anticipated and intended that the parties would provide a list that did the following: named each witness; indicated the nature of his or her relationship to the respondents and/or complainant; and stated the specific factual matters at issue in this proceeding about which each would be testifying. For example, the kind of information I anticipated being exchanged might be: Jane Doe, a fellow cafeteria employee with the complainant will testify about how often and for what length of time Burns was present in the workplace on a weekly basis. The list provided by the Commission and Complainant conforms to my expectation and intention. The responding parties are directed to provide to the other parties and file with the Tribunal this quality of information about their witnesses, and to do so by no later than October 24, 2005. Upon receipt and review of that information, should the Commission and/or Complainant wish to challenge the relevancy of any of the proposed testimony, they must communicate such challenge and the basis of it in writing to the responding parties and the Tribunal by October 31, 2005. The responding parties may respond to any such challenge(s) by November 7, 2005.
10All parties must also indicate to each other and the Tribunal in writing by October 24, 2005, which of their witnesses would testify should the Tribunal proceed to hear this matter in the manner proposed in paragraph 6 of this decision.
Sharon Lyonnais
11Finally, I note that the respondent Sharon Lyonnais, does not appear to have complied with my direction set out in the August 23, 2005 memorandum of the August 22, 2005 conference call. She has not contacted the Tribunal to indicate whether or not she intends to participate in this matter. She is hereby directed to do so in writing by no later than October 24, 2005. If she intends to participate she must also specify how she intends to participate – i.e. does she intend to call witnesses, and if so, whom. A failure to respond to this direction may result in her being precluded from leading evidence or making submissions at the hearing, pursuant to Rule 48 of the Tribunal’s Rules of Practice.
Other Matters
12I understand that the parties have complied with the mutual disclosure obligations under the Tribunal’s Rules of Practice. Any disputes about the extent of disclosure that has been made, or any further requests for production or particulars, or other motions must be made in writing by no later than October 24, 2005.
Conclusion
13I may issue further practice directions or convene another conference call after reviewing submissions or materials filed by the parties pursuant to this decision.
Dated at Toronto, this 17th day of October, 2005.
“Signed by”
Mary Anne McKellar
Vice-Chair