Ontario Human Rights Commission v. ICE Consultants Inc., 2005 HRTO 51

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Marlene Garrelhas

Complainant

-and-

ICE Consultants Inc., Michael Bain and Evan Wright

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: November 24, 2005

Citation: 2005 HRTO 51

Human Rights Tribunal of Ontario

400 University Avenue, 7^th 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

A p p e a r a n c e s

Ontario Human Rights Commission ) Reema Khawja, Counsel

Marlene Garrelhas, Complainant ) No appearance

ICE Consultants Inc., Michael Bain and )

Evan Wrights, Respondents ) Trevor Lawson, Counsel

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging an infringement of sections 5(1), 5(2) and 9. The Complaint is dated March 12, 2002 and was referred to the Human Rights Tribunal of Ontario (“the Tribunal”) by letter dated April 13, 2005. The Complaint alleges that the Respondents discriminated against the Complainant in relation to her employment on the basis of disability.

2Subsequent to the referral of the Complaint to the Tribunal and the holding of the Initial Conference Call pursuant to the Tribunal’s Rules of Practice 2004 (“the Rules”), the Commission filed its Statement of Facts, Issues and Remedy (“pleadings”). The Complainant relied upon the Commission’s pleadings. The Respondents did not file their pleadings in response, but rather took the position that the pleadings filed by the Commission were deficient or improper, and brought a Motion seeking further particulars, as well as an Order striking certain paragraphs.

3The Commission and the Complainant opposed the Motion brought by the Respondents.

4The Tribunal convened a hearing on October 20, 2005 to hear the arguments with respect to this Motion. This decision addresses the issues raised in the Respondents’ Motion.

BACKGROUND

5Ms. Marlene Garrelhas was employed by the Corporate Respondent, ICE Consultants Inc. from May 1998 until February 2002. The Personal Respondents were, at all material times, the senior officers and managers of the Corporate Respondent.

6The Complaint alleges that in or about April 1999, Ms. Garrelhas was diagnosed with a depressive disorder. The Complaint further alleges that on or about February 4, 2002, after the Complainant had been on sick leave for a number of months, her employment was terminated by the Respondents. The essence of the Complaint is that certain actions of the Respondents, commencing when Ms. Garrelhas was first diagnosed with her depressive disorder, up to and including the time of her termination, constitute discrimination and harassment in employment on the grounds of disability.

7The Commission conducted an investigation of the Complaint pursuant to Section 33 of the Code in the period between January 2003 and October 2004. A number of individuals, including representatives and employees of the Corporate Respondent, were interviewed by the Commission Investigator. The Respondents were provided with the Commission’s Section 36 Case Analysis and given an opportunity to comment. On or about April 12, 2005, the Respondents and the Complainant were advised that the Commission had decided to refer the Complaint to the Tribunal.

8The Tribunal held an Initial Conference Call on June 1, 2005 pursuant to its Rules. Following that call, on June 16, 2005 the Commission served and filed its pleadings and provided disclosure to the Respondents.

9On July 20, 2005, Counsel for the Respondents wrote Commission Counsel raising concerns and objections related to the Commission’s pleadings. The Respondents sought particulars in relation to paragraphs 22, 34 and 38 of the Commission’s pleadings, and further requested that the Commission consent to having paragraphs 19 and 20 of the material facts and 2(e) and 2(f) of the remedial request struck out in their entirety. The Respondents’ position, which formed the basis of its claim in the Motion, was set out in detail in the July 20, 2005 letter. The relevant portions are reproduced below:

(a) paragraph 22 of "Statement of Facts"

Paragraph 22 of the "Statement of Facts" section of the Statement of Facts and Issues stipulates as follows:

After July, 1999, Mr. Bain subjected Ms. Garrelhas to harassing comments such as "Why are you always crying or depressed?" and “Why are you depressed when there is no good reason for you to be?” Throughout her employment, Mr. Wright subjected her to harassing comments such as "Smile at all times or you will be fired."

Please provide full particulars with respect to the allegations in paragraph 22, including, without limitation, the dates, times and locations on which Mr. Bain is alleged to have made each of these comments to Ms. Garrelhas, the specific number of times on which these comments were made to Ms. Garrelhas, and the names of any individuals who witnessed Mr. Bain make these comments, or with whom Ms. Garrelhas discussed these comments.

Please also advise as to whether the Commission intends to allege that Mr. Bain made any comments in addition to the two comments described in paragraph 22. If so, please disclose the specific additional comments which Mr. Bain is alleged to have made to Ms. Garrelhas and full particulars with respect to each additional comment. It is not sufficient for the Commission to provide selected examples of the allegations on which it intends to rely. Our clients are unable to investigate these allegations and make full answer and defence with respect thereto until such time as the particulars requested are provided by the Commission.

In addition, please provide full particulars with respect to the harassing comments which Mr. Wright is alleged to have made to Ms. Garrelhas, including, without limitation, the dates, times and locations on which Mr. Wright is alleged to have made each of these comments to Ms. Garrelhas, the specific number of times on which these comments were made to Ms. Garrelhas, and the names of any individuals who witnessed Mr. Wright make these comments, or with whom Ms. Garrelhas discussed these comments.

Please also advise as to whether the Commission intends to allege that Mr. Wright made any comments in addition to the comment described in paragraph 22. If so, please disclose the specific additional comments which Mr. Wright is alleged to have made to Ms. Garrelhas and full particulars with respect to each additional comment. It is not sufficient for the Commission to provide selected examples of the allegations on which it intends to rely. Our clients are unable to investigate these allegations and make full answer and defence with respect thereto until such time as the particulars requested are provided by the Commission.

(b) paragraph 34 of "Statement of Facts"

Paragraph 34 of the "Statement of Facts" section of the Statement of Facts and Issues stipulates as follows:

While Ms. Garrelhas was away from the office, Ms. Ferriera recommended to Mr. Bain and Mr. Wright that Ms. Garrelhas not be allowed to return to work because she was "tired of carrying her", and furthermore that she was annoyed by her behavioural changes at the workplace.

Please provide full particulars with respect to the allegations set out in paragraph 34 of the "Statement of Facts" section of the Statement of Facts and Issues, including, without limitation, the specific date(s) on which Ms. Ferriera is alleged to have made the statements described in paragraph 34, the time(s) and location(s) of such statements and the names of any individuals who, witnessed Ms. Ferriera make these statements, or with whom Ms. Garrelhas discussed these statements.

Please also advise as to whether the Commission intends to allege that Ms. Ferriera made any comments in addition to those described in paragraph 34. If so, please disclose the specific additional comments on which the Commission intends to rely and full particulars with respect to each additional comment. Our clients are unable to investigate and make full answer and defence with respect to the allegations described in paragraph 34 until such time as the particulars requested herein are provided by the Commission.

(c)paragraph 38 of "Statement of Facts"

Paragraph 38 of the "Statement of Facts" section of the Statement of Facts and Issues stipulates as follows:

Ms. Garrelhas is aware of at least one other employee whose employment was terminated because of mental disability or a perceived disability.

The Commission has failed to plead any material facts in support of this allegation. Please provide us with full particulars of all the material facts on which the Commission intends to rely in support of this allegation, including, without limitation, the names of all "other employees" whom the Commission and/or Ms. Garrelhas alleges to have been terminated because of mental disability or a perceived disability, the dates on which each such individual was allegedly terminated, and the specific circumstances surrounding each termination on which the Commission intends to rely in support of the allegation described in paragraph 38. Our clients are unable to investigate and make full answer and defence with respect to this allegation until such time as the particulars requested herein are provided by the Commission.

(d) paragraph 19 of "Statement of Facts"

Paragraph 19 of the "Statement of Facts" section of the Statement of Facts and Issues stipulates as follows:

From July 1999 to September 2000, Ms. Garrelhas was required to work overtime, for which she was not remunerated. Other employees of the corporate respondent were not so treated.

The Commission has failed to plead any material facts whatsoever to support the allegation in paragraph 19 of the "Statement of Facts" section of its Statement of Facts and Issues. Nor has the Commission or Ms. Garrelhas disclosed any documents which support this allegation. Nor does Ms. Garrelhas' Complaint, filed on December 3, 2002, make any allegation in this regard. Nor is any allegation in this regard raised in the Case Analysis Report filed on October 12, 2004.

However, even if this new allegation was true, which is not admitted and is expressly denied, it establishes a possible breach of the Ontario Employment Standards Act, 2000, not the Ontario Human Rights Code. The Tribunal does not have jurisdiction to hear and consider claims based solely on a violation of the ESA. However, even if the Tribunal had such jurisdiction, the time limits for making a claim under the ESA for overtime expired more than three years ago.

Accordingly, we request that the Commission consent to strike out paragraph 19 of the "Statement of Facts" section of its Statement of Facts and Issues.

(e)paragraph 20 of "Statement of Facts"

Paragraph 20 of the "Statement of Facts" section of the Statement of Facts and Issues stipulates as follows:

Ms. Garrelhas was not paid vacation pay for the years 1998, 2000 and 2001. Other employees of the corporate respondent were nor so treated.

The Commission has failed to plead any material facts whatsoever to support the allegation in paragraph 20 the "Statement of Facts" section of its Statement of Facts and Issues. Nor has the Commission or Ms. Garrelhas disclosed any documents which support this allegation.

Nor does Ms. Garrelhas' Complaint, filed December 3, 2002, make any allegation in this regard. Nor is any allegation in this regard raised in the Case Analysis Report filed on October 12, 2004.

However, even if this new allegation was true, which is not admitted and is expressly denied, it establishes a possible breach of the Ontario Employment Standards Act, 2000, not the Ontario Human Rights Code. The Tribunal does not have jurisdiction to hear and consider claims based solely on a violation of the ESA. However, even if the Tribunal had such jurisdiction, the time limits for making a claim under the ESA with respect to vacation pay expired more than two years ago.

Accordingly, we request that the Commission consent to strike out paragraph 20 of the "Statement of Facts" section of its Statement of Facts and Issues.

(f) paragraph 2(e) of "Desired Remedy"

In paragraph 2(e) of the "Desired Remedy" section of the Statement of Facts and Issues, the Commission requests:

...An order seeking compensation for overtime which Ms. Garrelhas was not paid during the period from July, 1999 to September, 2000.

Given that there are no material facts to support Ms. Garrelhas' claim for overtime pay, the fact that the Commission [sic] has no jurisdiction to hear and consider Ms. Garrelhas' claim for overtime pay, and the fact that the time limits for filing such a claim have expired, we request that the Commission consent to strike out paragraph 2(e) of the "Desired Remedy" section of its Statement of Facts and Issues.

(g) paragraph 2(f) of "Desired Remedy"

In paragraph 2(f) of the "Desired Remedy" section of the Statement of Facts and Issues, the Commission requests:

...An order seeking compensation for vacation pay for which Ms. Garrelhas was not paid during the years 1998, 2000 and 2001.

Given that there are no material facts to support Ms. Garrelhas' claim for vacation pay, the fact that the Commission [sic] has no jurisdiction to hear and consider Ms. Garrelhas' claim for vacation pay, and the fact that the time limits for filing such a claim have expired, we request that the Commission consent to strike out paragraph 2(f) of the "Desired Remedy" section of its Statement of Facts and Issues.

10The Commission responded by letter dated July 27, 2005. The Commission did not provide further particulars nor did it indicate whether it had available further particulars in relation to the impugned paragraphs. It took the position that the pleadings it had filed were sufficient and proper and that much of the information requested was in the nature of evidence. It also asserted that in any event the preliminary objections were premature, and that the Respondents should file their pleadings and make disclosure in accordance with the Rules.

DECISION AND ANALYSIS

11After careful consideration of the submissions and argument presented by the parties the Motion is denied. However, in view of information which came to light during the hearing of this Motion, and for case management purposes, the Tribunal makes a Direction to ensure that this case proceeds fairly and expeditiously.

12The Tribunal finds that the requests made in this Motion are premature. Given all of the circumstances, including the nature of the particular allegations in the impugned paragraphs, the extensive disclosure provided to the Respondents by the Commission and the procedures established by the Tribunal’s Rules, the Respondents ought to have filed their pleadings and made disclosure prior to bringing forward the issues raised in this Motion.

13It has been noted in previous decisions of this Tribunal that the processes established under the Code and the Tribunal’s Rules aim to ensure that human rights complaints are dealt with expeditiously and in a way that avoids undue technicality. Section 2 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (“the SPPA”), provides that the Rules (and hence the procedures) of any Tribunal to which the SPPA applies, should be interpreted in a manner which “secure[s] the just, most expeditious and cost-effective determination of every proceeding on its merits.” (See also: Braithwaite v. Ontario (Attorney General) (No.1) 2005 HRTO 31 and Toneguzzo v. Kimberley-Clark Inc. (No.3) 2005 HRTO 45).

14No doubt, there will be situations that arise in the litigation of disputes before the Tribunal where parties raise issues related to the sufficiency of pleadings or objections that a party is improperly seeking to expand the subject matter of a complaint. The parties are entitled to raise these issues and objections and the Tribunal may be required to make rulings. However, except in the rarest of circumstances, preliminary and procedural objections should not be brought prior to a party filing its pleadings and making disclosure. There are a number of reasons for this.

15First, the bringing of Motions for further particulars or the striking of particular paragraphs in a pleading at the pleading stage tends to slow down the process and often leads to unnecessary proceedings. Rule 39 of the Tribunal’s Rules specifically contemplates that preliminary issues and objections will be raised in the respondent’s pleadings. Likewise the Rules provide for pre-hearing conferences, generally held after pleadings are filed and disclosure is exchanged, during which the Tribunal may deal with any and all preliminary and procedural issues in advance of any hearing of the merits. Requiring the parties to file their pleadings and make disclosure prior to dealing with preliminary matters will assist the parties and the Tribunal in narrowing issues and having all objections dealt with together. Effective case management and efficient dispute resolution requires the parties to set out their respective cases at the earliest opportunity once the matter is referred to the Tribunal.

16Second, it is useful for the Tribunal, when being asked to rule on preliminary or procedural issues, to have the parties’ pleadings before it. This is so even where a party claims that it is not in a position to respond fully to certain aspects of a case because of allegedly deficient pleadings. Requiring the parties to identify, at the earliest stage and to the extent possible, which matters are agreed to, which matters are in dispute and to provide a statement of the material facts upon which the party intends to rely, will be extremely helpful for the Tribunal in its task of determining any preliminary issues that may arise, and as noted above, in case management more generally. (See: Boodhram v. 2009158 Ontario Ltd. 2005 HRTO 29)

17Third, Motions of this kind need to be considered within the particular context of how human rights complaints are dealt with under the structures established in the Code. This point was aptly made by Vice-Chair Faughnan in Neusch v. Ontario (Ministry of Transportation) (No.1) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. Inq.) at paragraph 46:

However, it will likely only be on rare occasions when a motion for particulars is allowed at the pleadings stage. This is because, by the very nature of proceedings before the Board and the fact finding process before the matter is referred to the Board, there should have been a great deal of information exchanged between the parties, making a request for further particulars unnecessary….

18In the instant case, the Commission conducted an investigation into the Complaint filed by Ms. Garrelhas. It conducted interviews with a variety of individuals, including representatives of the Respondents and asked questions relating to the very allegations set out in paragraphs 22, 34 and 38. The Investigator prepared a Case Analysis Report which included references to those allegations, and the Respondents were given a copy. The Respondents later received the entire Commission investigation file including all witness statements collected by the Investigator. The Commission asserted that the disclosure provided to the Respondents also included documents supporting the claims made in paragraphs 19, 20, 2(e) and 2(f).

19The allegations in paragraphs 19, 20, 22, 34, 38, 2(e) and 2(f) all relate to matters which, broadly speaking, are within the knowledge of the Respondents. They may be to a greater or lesser extent, vague and unspecific. However, in the Tribunal’s view, when one examines the nature of the allegations in the impugned paragraphs, placed within the context of the original Complaint, the investigation process in which the Respondents participated, the extensive disclosure made to the Respondents and the Commission’s pleadings as a whole, it cannot be said that the Respondents would be unable to file a proper response.

20In this regard, the Tribunal adopts the approach set out by the Board in Neusch (at paragraph 53):

Since a complaint, as supplemented by the pleadings, should inform a respondent of the particular issues toward which proof must be directed and of the facts material to the issues relied on, the operative test when considering the motions for particulars at this stage of these proceedings is: what is necessary for these Respondents to plead. This means that in assessing these requests for particulars, the Board should consider whether the City and the Ministry are sufficiently aware of all matters that form a substantial part of the facts material to the issues and whether the City and Ministry have been provided with enough information to allow them to file a Response that adequately fulfils the requirements of Rule 36. (Emphasis added)

21Having found that the Motion is premature, the Tribunal is not unsympathetic to the position advanced by the Respondents. The Commission has an obligation to plead all of the material facts upon which it intends to rely. Generally speaking this should include particulars of the dates when, the places where, and the persons who, engaged in the allegedly improper actions or behaviour. While the Tribunal makes no finding as to whether in all the circumstances the impugned paragraphs are deficient, it does appear that, for example, paragraph 38 of the Commission’s pleadings is somewhat lacking in particularity.

22Neither does the Tribunal accept the assertion made by the Commission that in filing its pleadings it need not particularize allegations with specificity because it has not yet seen the Respondents disclosure, that it has not yet gone through the process of preparing its case for hearing or because allegations may arise for the first time during the testimony of a witness. In most cases, as here, the Commission will have conducted an extensive investigation over an extended period of time. The Commission is also primarily responsible for the carriage of the litigation. The filing of pleadings under the Tribunal’s Rules is the stage at which the Commission and the Complainant frame the case to be litigated, and there is an obligation to do so comprehensively. While it is true that the Rules and the jurisprudence permit the Tribunal to grant leave to amend complaints and pleadings, and the threshold for doing so is properly quite low, for the same reasons as have been expressed above for requiring the respondent to set out at the earliest stage and to the extent possible its case, the Commission has an obligation to do likewise.

23In the face of the request made by the Respondents for further particulars, the Commission’s response was, in part, that the request was premature and that the Respondents should file their pleadings and make disclosure. As the Tribunal has found, that response was technically correct. It was not however particularly helpful to the expeditious determination of this Complaint. Had the Commission indicated to the Respondents, as they did at the hearing of the Motion, that it had no further particulars to provide at this point (reserving its right to amend its pleadings), then this Motion might have been avoided. Likewise, had the Respondents filed their pleadings and provided disclosure as required by the Rules, and the Commission provided its Reply, some or all of the issues in this Motion might have proved moot, or might otherwise have been capable of more expeditious resolution.

24The Tribunal may yet have to decide whether the Commission has an obligation to provide further particulars, whether it is obliged to provide information which may be characterized as evidence or whether in the absence of further particulars, certain paragraphs remain so vague and speculative that they ought to be struck. However, for the reasons set out above, the parties first need to complete the pleading and disclosure process set out in the Tribunal’s Rules. If any preliminary or procedural issues remain, any of the parties may raise those issues with the Tribunal.

DIRECTION

25In order to assist in avoiding any additional delays in this matter, the Tribunal makes the following case management Direction:

a. The Commission shall within 10 days of this decision, confirm whether it has any additional particulars in relation to paragraphs 19, 20, 22, 34, 38 of its pleadings;

b. Within 25 days thereafter, the Respondents shall file their pleadings and provide to the Commission and the Complainant disclosure as required by the Rules. The Respondents shall at the same time set out any preliminary or procedural objections which they may have, and provide detailed submissions with respect to any issue related to the sufficiency or propriety of the Commission’s pleadings;

c. Within 10 days thereafter, the Commission (and the Complainant if she desires) may provide a Reply to the pleadings of the Respondents. In any event, the Commission shall provide detailed submissions in response to any issue raised by the Respondents related to the sufficiency or propriety of the pleadings;

d. The Tribunal proposes to deal with any objection related to the sufficiency or propriety of pleadings on the basis of the written submissions as noted above. Should any party consider that process to be inappropriate and feel that an oral hearing is necessary, they should set out the reasons for that position at the same time they file their submissions.

26For all of the reasons discussed above, the Motion of the Respondents is dismissed.