Ontario Human Rights Commission v. Nutritional Management Services Limited, 2006 HRTO 26

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 and Sharon Lyonnais

Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar

Date: September 22, 2006

Citation: 2006 HRTO 26

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

1This complaint relates to the Complainant Earhart’s employment with the Respondent NMS. There are issues with respect to both the ongoing work environment, in which it is alleged that sexual harassment occurred, and the circumstances in which Earhart’s employment was terminated, which it is alleged constituted reprisal under the Human Rights Code (“the Code”).

2Several days of hearing have been held. I have now heard testimony from three individuals who actually worked together in the workplace and have direct knowledge of what occurred there. These individuals are Earhart and the Personal Respondents Burns and Lyonnais. The Commission has closed its case, subject to certain income loss information for Earhart which it has reserved the right to introduce later.

3The Respondents as indicated above, have commenced their case. In addition to Burns and Lyonnais, they have indicated an intention to call a number of other witnesses. There is no doubt that some of these witnesses are in a position to testify about matters that are relevant to these proceedings as they appear from the Respondents’ correspondence dated January 3, 2006 to have had some direct personal knowledge of the circumstances of Earhart’s employment (and its termination) and had some interaction with her. These witnesses are Dan Thompson, Karen Humphrey, Stephanie Malo, Tanya Lewis, and Mary Anne Kitty. While it does not appear that NMS’ Human Resources Manager, Tammy Latta, had any direct personal interaction with Earhart during her employment, Latta may nevertheless have relevant information to provide respecting any anti-harassment policies and procedures in place at NMS, the existence or efficacy of which have been impugned by the Commission, and in respect of which the Commission appears to seek to have me make certain remedial orders. While the Respondents are obviously not obliged to call any or all of these witnesses, it is apparent that some, at least of their anticipated evidence would be relevant to these proceedings. Should there be an issue as to the relevance of any particular line of questioning, it can be addressed when it arises.

4In addition to the potential witnesses identified in the preceding paragraph, the Respondents have identified approximately sixteen additional witnesses from whom they intend to elicit testimony. It is not apparent to me that these witnesses are in possession of any knowledge or information that is relevant to these proceedings and that is not available from another source. The Commission has expressed similar concerns. While the Respondents have previously invited me to tell them which witnesses to call, that is clearly incompatible with my role as an impartial adjudicator. It is simply not appropriate for me to provide any party with legal or strategic advice. Nevertheless, it is not an efficient use of hearing time to deal with a series of sixteen objections based on the inadmissibility of any evidence from these witnesses. This decision is therefore intended to provide some further guidance to the parties with respect to what is at issue in this proceeding in the hopes that they will then be able to ascertain for themselves which, if any, of these sixteen witnesses are in a position to provide me with any evidence pertinent to the disposition of this Complaint.

5At the outset, I want to repeat something I have stressed in a previous unreported interim decision in this matter, (Earhart v. Nutritional Management Service Limited, et al. (22 December 2005), HR-0909-05, HRTO) and that I have repeated on a number of occasions in the course of the hearing so far. Character evidence tending to show that the Personal Respondents (or any of them) would not behave in the way they are alleged to have conducted themselves is simply not relevant. Similarly, evidence of the corporate character of NMS tending to show that it would not tolerate the sort of conduct and behaviour alleged is also not relevant.

6Without objection from the Respondents, the Commission introduced certain similar fact evidence in this proceeding. Amanda Crocker is a former NMS employee who was supervised by the Respondent Burns. She complained that he used certain “pet names” in addressing her in the workplace and that he made a sexually inappropriate comment that could be construed as a sexual solicitation. Burns acknowledged during the Commission’s investigation of Crocker’s complaint that these things had occurred, and he also made the same acknowledgment in the course of this hearing. The Crocker complaint settled. Earhart’s complaint contains some allegations that are similar to those raised by Crocker and acknowledged by Burns. The Commission takes the position that, based on the similar fact evidence, it is more likely than not that Burns engaged in the conduct complained of by Earhart. Burns denies Earhart’s allegations, and NMS appears to take the position that Burns’s response to the Crocker complaint and the terms on which it settled make it less likely that Burns would have done the things that Earhart alleges. NMS also suggests that the timing of the Crocker settlement compared to the filing date of the Earhart complaint, and the relationship between Crocker (and her family) and Earhart casts doubt on the bona fides of this complaint.

7Crocker’s Complaint is not before the Tribunal. Her motivation in bringing that complaint, whether all of the conduct alleged in fact occurred, and the effect of Burns’s conduct on Crocker, are not matters that I will be deciding. Any evidence directed to those issues will not be relevant to what I am deciding: did Burns behave in the way Earhart has alleged; did the circumstances of Earhart’s termination constitute a reprisal? These observations may assist the Respondents in determining whether they wish to seek to call those witnesses they have identified as former work colleagues of Burns and Crocker.

8Earhart worked in a cafeteria operated by NMS to service the employees of Beta Brands, a candy factory. Earhart testified that she complained to her immediate supervisor Lyonnais and to her regional manager Burns about the behaviour of a Beta Brands employee. Burns acknowledged that Earhart had complained to him and that his response was to advise Earhart not to sit with the individual she had complained about during her break. Lyonnais denied that Earhart had complained to her about the individual in question, but also offered that she was aware that Earhart had given her phone number to him. Burns testified that he told Earhart not to sit with the individual during her break. This testimony raises an issue as to the efficacy of the implementation of the corporate anti-harassment policy insofar as Earhart is concerned. Whether the policy provided an effective means of addressing concerns of other employees does not assist me in determining whether it failed Earhart in at least this instance. The fact that the policy may have worked for others is also of little significance if I conclude that Earhart was not informed of the policy. These observations may assist the Respondents in determining whether they wish to continue to seek to call as witnesses other employees who have utilized the policies.

9As discussed at the last day of hearing, it may be helpful if the Commission can clarify whether they are impugning the substance of the NMS policies, or merely the fashion in which they are implemented, including the manner in which they are communicated to employees. This information will undoubtedly assist NMS to determine whether the evidence of Latta alone will be sufficient in its view to address the issues relating to the policies. The Commission is therefore directed to clarify in writing within seven days of the date of this decision which, if any, aspects of NMS anti-harassment or human rights policies it regards as deficient.

10Upon receipt of the Commission’s clarification, the Respondents shall have an additional seven days in which to advise the other parties and the Tribunal of any deletions from their proposed list of witnesses, and if appropriate, to provide a revised estimate of the number of hearing days required to complete their case.

11The parties are reminded that they may also seek the assistance of a mediator at any time by contacting the Tribunal’s Registrar.