HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Doug Lundy Complainant
-and-
Ontario Human Rights Commission Commission
-and-
Kaparel Corporation, Willi Schmid and Ralf Kuhlmann Respondents
INTERIM DECISION
Adjudicator: Mark Hart Date: December 21, 2007 Indexed as: Lundy v. Kaparel Corporation et al.
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
APPEARANCES
Ontario Human Rights Commission ) Prabhu Rajan, Counsel Doug Lundy, Complainant ) himself Kaparel Corporation, Willi Schmid ) and Ralf Kuhlmann, Respondents ) Antony Niksich, Counsel
Introduction
1This Interim Decision deals with several matters. First, it deals with a motion made by the Commission and the Complainant to add Rittal GmbH & Co. KG (“Rittal”) as a party Respondent to this proceeding. Second, it addresses concerns raised by the Respondents regarding alleged deficiencies in the Complainant’s compliance with certain disclosure orders made on the Pre-Hearing Conference Call and requests by the Respondents for further disclosure. Finally, it deals with the Respondents’ request for the adjournment of hearing dates currently scheduled for February and March 2008.
BACKGROUND
2The Complaint in this matter was filed on December 30, 2004 and alleges discrimination on the basis of age in relation to the Complainant not being hired for the General Manager position at the Respondent Kaparel Corporation (“Kaparel”). The Complaint was referred by the Commission to the Tribunal by letter dated April 30, 2007.
3The Pre-Hearing Conference Call in this matter was held on October 26, 2007. In the Statement of Facts, Issues and Remedies filed by the Commission on July 6, 2007, the Commission put the parties on notice that it would be bringing a motion to add Rittal as a respondent. On the Pre-Hearing Conference Call, dates were set for the exchange of information and submissions in relation to the Commission’s motion. In light of the disposition of this motion, a reply from the Commission and the Complainant to the Respondents’ submissions in response to the motion is not required.
4Also on the Pre-Hearing Conference Call, an Order was made requiring the Complainant to make disclosure of certain information and documents that had been requested in e-mails sent by counsel for the Respondents, dated September 29, 2007 and October 25, 2007. This disclosure was to have been made by the Complainant by November 16, 2007. On December 3, 2007, the Tribunal received correspondence from counsel for the Respondents regarding certain alleged deficiencies in the disclosure made by the Complainant and raising requests for further disclosure. The Tribunal subsequently set dates for the Commission and the Complainant to respond to this correspondence, and for the Respondents to make any reply.
THE MOTION TO ADD RITTAL AS A RESPONDENT
5The Tribunal's jurisdiction to add a party as a respondent arises from ss. 39(2) and (3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended ("Code"), the relevant portions of which read as follows:
39(2) The parties to a proceeding before the Tribunal are,
(a) the Commission, which shall have carriage of the complaint;
(b) the complainant;
(c) any person who the Commission alleges has infringed the right;
(d) any person appearing to the Tribunal to have infringed the right . . .
(3) A party may be added by the Tribunal under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the Tribunal considers proper.
6The legal principles to be applied in addressing a request to add a person as a party respondent were recently reviewed by the Tribunal in Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep) [2006] HRTO 22. In that case, the Tribunal confirmed that there is a two-part test to be applied when dealing with such requests.
7The first part of the test is whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the Complainant's rights: Greenhorn, supra, at para. 23.
8The Respondents and Rittal take the position that this part of the test is restricted to a review only of facts alleged “in the Complaint” and point to the test as articulated by the Tribunal in Pieters v. Liquor Contol Board of Ontario [2007] HRTO 22 at para. 10. I do not accept the Respondent’s interpretation of the Pieters decision, which is in fact a restatement of the test that had been articulated in the Greenhorn decision. The reference to “Complaint” in Pieters is not a reference to the Complaint document, but rather to the proceeding itself, and the Respondents’ interpretation of the decision is strained at best and overly technical.
9Under s. 36(1) of the Code, the Commission refers “the subject-matter of the complaint” to the Tribunal. To restrict the Tribunal’s consideration only to facts specifically set out in the Complaint document itself would be contrary to the broad articulation of the scope of the referral in s. 36(1) and would lead to unnecessary motions to amend the Complaint document itself.
10Moreover, the Tribunal is required under s. 39(1) of the Code, to hold a hearing “to determine whether a right of the complainant under this Act has been infringed”. The statutory task given to the Tribunal is not restricted to a determination of whether the allegations as set out in the Complaint document are proven. For this reason, the Tribunal’s Rules appropriately require the parties to file pleadings particularizing the facts and issues on which they will rely in the Tribunal’s proceeding. The Commission is required by Rule 37 to file a Statement of Facts, Issues and Remedy which must contain a statement of the facts and issues in dispute. Under Rule 38, the Complainant also may choose to file such a Statement. Nowhere in the Rules is the Commission or Complainant restricted to only setting out the facts as alleged in the Complaint as originally filed with the Commission. Indeed, such a restriction would be entirely redundant, since the Complaint already sets out these facts and has already been filed with the Tribunal at the time the matter is referred by the Commission to the Tribunal for a hearing.
11Rules requiring the Commission to file pleadings have the purpose of allowing the Commission (and the Complainant) to re-state the facts and issues in dispute in light of the results of the Commission’s investigation process, rather than simply relying upon a Complaint often filed many years earlier. Similarly, Respondents are not restricted in their replies to the facts and issues as framed in their responses during the Commission process. To restrict consideration only to facts alleged “in the Complaint” when deciding whether to add a proposed Respondent as a party would defeat the purpose of having the Commission file pleadings and would ignore any facts that came forward as a result of the Commission’s investigation.
12Nor would it be appropriate to restrict consideration solely to the pleadings as filed by the Commission or the Complainant at the outset of the Tribunal proceeding, for several reasons. First, the hearing process is dynamic rather than static, with disclosure by the Respondents often happening after the Commission and the Complainant have filed their pleadings, with subsequent disclosure orders being made by the Tribunal and with an ongoing disclosure requirement imposed on the parties under Rule 46. This may lead to information coming into the possession of the Commission and the Complainant which might support a request to add a person as a party respondent after pleadings already have been filed. Second, s. 39(3) of the Code expressly empowers the Tribunal to add a person as a respondent “at any stage of the proceeding”. To restrict consideration only to facts as alleged in the Complaint document when making such determination would be entirely at odds with the Tribunal’s power to add a party respondent at any stage of the proceeding, which includes later stages of the proceeding when further facts and information may have come forward.
13Accordingly, the first part of the test requires a determination of whether there are facts alleged in the proceeding that, if proven, could support a finding that the proposed respondent violated the Complainant's rights under the Code.
14The instant case relates to a decision made by the Respondents in September 2004 not to hire the Complainant for the General Manager position at Kaparel. The Complainant was interviewed twice, once on July 28, 2004 and then again on September 7, 2004. There is no dispute that the Respondent Schmid was present for both interviews or that the Respondent Kuhlmann was present at least for the September 2004 interview.
15Information provided for the motion indicates that Mr. Schmid was an officer and director of Kaparel at the relevant time, and was also a director of Rittal. This information further indicates that Mr. Kuhlmann was a director of Rittal, but was not either an officer or director of Kaparel at the relevant time. The Respondents’ pleading states that Mr. Schmid and Mr. Kuhlmann are both “representatives” of Rittal.
16The Complaint alleges that the Respondents, including Mr. Kuhlmann, violated the Complainant’s rights under the Code by discriminating against him on the basis of age. Pursuant to Section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent” of the corporation. Since both Mr. Schmid and Mr. Kuhlmann were directors and “representatives” of Rittal at the relevant time, this could support a finding that Rittal is liable for their actions. Whether such a finding ultimately will be made depends very much upon consideration of all of the evidence admitted at the hearing in this matter. However, at this preliminary stage, I find that this alone gives rise to a sufficient basis to support the first part of the test.
17Moreover, there are further alleged facts which support adding Rittal as a party Respondent, including:
a. the statement in the Respondents’ pleading that Kaparel is a subsidiary of Rittal
b. the description of Kaparel as “a Rittal Company” and as being “part of Rittal International” on Kaparel’s website
c. the facts alleged by the Commission in support of its motion that the person who was hired as General Manager at Kaparel was required to report to Rittal, which, if proven, suggests that Rittal may have had an interest and potential involvement in the hiring decision for the General Manager at Kaparel.
18I do not make any finding at this preliminary stage of the proceeding as to whether or not the General Manager at Kaparel could be considered to be an “employee” of Rittal. However, as noted in Payne v. Otsuka Pharmaceutical Co. [2001] OHRBID No. 23 at para. 34, s. 5(1) of the Code involves discrimination "with respect to employment" which includes more than the traditional employer-employee relationship.
19The second part of the test is whether the addition of the proposed Respondent would cause substantial prejudice to that party’s ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal. No such prejudice is asserted by Rittal in its submissions in response to the motion. However, Rittal does ask for an adjournment of the hearing dates in the event that an Order is made to add Rittal as a party Respondent. This request is dealt with below.
20For all of the foregoing reasons, the Tribunal grants the Commission’s motion to add Rittal as a party respondent to this proceeding. As this will require the filing of amended pleadings, the Tribunal imposes the following timetable:
a. The Commission and the Complainant shall file amended pleadings by no later than January 11, 2008 identifying Rittal as an added respondent and setting out any further facts, issues or remedies as may relate to Rittal.
b. The Respondents and Rittal shall file amended pleadings in response by no later than January 25, 2008.
c. Any reply filed by the Commission and the Complainant shall be restricted solely to issues relating to Rittal and shall be filed by no later than February 1, 2008.
THE RESPONDENTS’ REQUEST FOR DISCLOSURE
21On December 3, 2007, the Tribunal received correspondence from counsel for the Respondents regarding certain alleged deficiencies in the disclosure made by the Complainant and raising requests for further disclosure. These matters will be addressed using the issues as identified in the Respondents’ correspondence.
a) Prior Employment at Teleride and IVU AG
22In an e-mail sent to the Complainant and the Commission on September 29, 2007, the Respondents requested certain documents and information from the Complainant which included: “confirmation of Mr. Lundy’s employment status at the time he applied for the position with Kaparel (July to September 2004). Who was Mr. Lundy working for? What type of work was Mr. Lundy performing? Was his employment full time or part time? Was his employment a contract position? When did his employment end? What was Mr. Lundy’s income?”
23On the Pre-Hearing Conference Call, the Complainant was required to provide the information and documents sought in this e-mail to the Respondents by no later than November 16, 2007. In a letter sent to counsel for the Respondents dated November 15, 2007, the Complainant stated: “At the time that Mr. Lundy applied for the position he was in litigation with IVU AG . . . Other than IVU AG, in a litigation context, Mr. Lundy has not worked for any other company since late July . . .”
24The Respondents note that on the Complainant’s resume, which he submitted at the time and which he indicates he has sent to prospective employers as recently as October 2007, the Complainant identifies himself as having been employed by IVU AG / Teleride TTi Systems from 1997, with no end date shown. The Respondents accordingly state that the Complainant has not adequately responded to their requests and further seek detailed information about the litigation between the Complainant and IVU AG and the name of and contact information for a person at IVU AG who is familiar with the Complainant.
25In response, on behalf of both the Commission and the Complainant, the Commission states that the Complainant was working for a company called Teleride Inc. in 2001, when it was acquired by IVU AG. It is further stated that IVU AG failed to honour the Complainant’s contract with Teleride, which precipitated litigation between the Complainant and IVU AG. As a result, it is stated that the Complainant’s employment with Teleride ceased in 2001 and was not continued with IVU AG. It is further stated that the Complainant was not employed by any other company at the time of his interviews with the Respondents.
26The Respondents point to apparent inconsistencies between the information provided by the Commission on behalf of the Complainant and the resume submitted by the Complainant at the time of his interviews and thereafter. These are matters that will undoubtedly be explored by the Respondents at the hearing in this matter. At this stage, however, the information sought by the Respondents in the September 29, 2007 e-mail, which is information about the Complainant’s employment status “at the time he applied for the position with Kaparel”, has been satisfied. The Complainant’s response is that his employment with Teleride ceased in 2001 and that he was not employed at the time of the interview (although he was engaged in litigation with IVU AG).
27This then requires consideration as to whether the Tribunal will make a further disclosure order requiring the Complainant to provide information about his duties at Teleride, as requested by the Respondents.
28The threshold for disclosure of documents or information in matters before the Tribunal is “arguable relevance”, which is not a particularly high bar. However, there must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Board: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para. 38.
29The Respondents take the position that a key issue in the proceeding is whether or not the General Manager position went to a more qualified individual, and that facts pertaining to the Complainant’s work experience and qualifications are material to this proceeding.
30The primary issue in this proceeding is whether or not age was a factor in the Respondents’ decision not to hire the Complainant as General Manager. The Respondents take the position that it was not, and that their decision was based upon their assessment that the Complainant was not as qualified for the position as the individual they ultimately selected. However, this decision was based upon the information that the Respondents had in their possession at the time the decision was made, not based on other or additional information gleaned through the litigation process. Accordingly, I find that information about the Complainant’s prior employment that was not known to the Respondents at the time the hiring decision was made is not relevant to this proceeding.
31A secondary issue that may arise in this proceeding, if it is found that age was a factor in the decision not to hire the Complainant, is whether or not the Complainant is entitled to compensation for lost income. In this context, the overriding remedial responsibility of the Tribunal is to put the Complainant in the position that he would have been in but for the discrimination, which in the instant case would involve consideration of the Complainant’s prospects for obtaining the General Manager position if age had not been considered. Once again, however, this assessment would of necessity take place on the basis of the information about the Complainant’s prior employment that the Respondents actually had in their possession at the relevant time.
32Accordingly, I do not find that the requests for information relating to the Complainant’s prior employment at Teleride are arguably relevant to a matter at issue in this proceeding.
33The Respondents also seek disclosure of detailed information regarding the Complainant’s litigation against IVU AG, as well as the name and contact information for a person at IVU AG who is familiar with the Complainant. For the reasons stated above, I also do not regard this information as being arguably relevant to the issues in this proceeding as canvassed above. However, this information may be relevant to this proceeding if the Complainant’s claim against IVU AG includes a period of time for which damages also are claimed in this proceeding, or if the litigation resulted in a settlement or award which includes a period of time for which damages also are claimed in this proceeding. If so, then this information would be relevant to the issue of the Complainant’s mitigation of his damages.
34Accordingly, I order the Complainant to advise by no later than January 7, 2008 whether his claim against IVU AG includes a period of time for which damages also are claimed in this proceeding, or if the litigation resulted in a settlement or award which includes a period of time for which damages also are claimed in this proceeding; and if so, I further order the Complainant to disclose to the Respondents and the Commission, by no later than January 7, 2008, any and all pleadings in the litigation, any settlement or order in the litigation, and information regarding the current status of the litigation. I will not require the Complainant to disclose the name of a person at IVU AG who is familiar with him, but note that if the litigation is relevant and pleadings and other documents are disclosed, counsel for IVU AG will be identified and can be contacted by the Respondents.
b) Information re companies for which the Complainant has worked since June 2004
35In the September 29, 2007 e-mail, the Respondents requested “the names and addresses of companies for which Doug Lundy has worked (including freelance) since June 2004. What type of work did Doug Lundy perform?”
36In response, the Complainant states that since January 2007, he has been working as a Corporate Start-up Advisor less than one day per week for equity only and without salary. The Complainant states that the equity he receives for these services currently does not have any value and may or may not have value in the future.
37The Commission and the Complainant take the position that the particulars around the Complainant’s equity in these start-up companies is not relevant to the issue of mitigation, as the Respondents already are aware of the income earned by the Complainant from 2004 to 2006 through disclosure of the Complainant’s notices of assessment.
38While the Respondents may be aware of the income the Complainant reported as having earned and which was assessed by the CCRA in the taxation years from 2004 to 2006, I note that the remedy claimed by the Complainant in this proceeding includes damages for lost earnings from October 1, 2004 to the present and is not limited to the end of 2006. Further, the Respondents are entitled to test the Complainant’s statement that the equity he has received in exchange for his services has no value, and are entitled to certain basic information in order to test this assertion.
39Accordingly, I find that certain information sought by the Respondents in relation to the services provided by the Complainant as a Corporate Start-up Advisor meets the standard of arguable relevance to this proceeding, and I order the Complainant to provide the following information and documents to the Respondents and to the Commission by no later than January 7, 2008: the names of the companies for which he has provided these services since October 1, 2004; the period of time during which he has provided these services to each of these companies; and a copy of any agreement under which the Complainant provides these services, including particulars of any terms as to the equity received or promised.
c) “Separation papers” from IVU AG and information re EI benefits
40In the October 25, 2007 e-mail sent by counsel for the Respondents, the Complainant was asked to produce “separation papers” from the position in which he was employed at the time he applied to Kaparel. In this regard, I note that the Complainant’s information is that he was not employed in any position at the time he applied to Kaparel. However, I will consider the Respondents’ request to include a request for “separation papers” in relation to the Complainant’s prior employment at Teleride, which ceased in 2001. For the reasons already canvassed above, I do not regard this request as being arguably relevant to any matter at issue in this proceeding.
41The Respondents further request disclosure of certain information pertaining to any claim which may have been made by the Complainant for Employment Insurance (“EI”) benefits. This information is not arguably relevant to any matter at issue in this proceeding. While a Complainant may be under an obligation to repay EI benefits if she or he subsequently receives a settlement or award which includes compensation for lost earnings attributable to the period for which EI benefits were received, receipt of EI benefits does not serve to reduce or mitigate any obligation on the part of a Respondent to compensate a Complainant for lost earnings. This information may become relevant in the event that an award is made in this proceeding requiring the Respondents to compensate the Complainant for lost earnings for a period during which he received EI benefits, thereby triggering the Respondents’ obligation to remit these monies directly to the appropriate agency. However, that is not a matter at issue in this proceeding, but rather is a matter that only potentially may arise after this proceeding has been concluded. Accordingly, I do not require the Complainant to disclose information regarding any claim for EI benefits.
REQUEST FOR ADJOURNMENT
42As noted above, in the event that the Tribunal decided to grant the Commission’s motion to add Rittal as a party Respondent, the Respondents and Rittal request that the scheduled hearing dates in this matter be adjourned to a date after March 2008 to give Rittal adequate time to prepare pleadings and to prepare for the hearing. Similarly, in relation to their disclosure requests, the Respondents state that they have been prejudiced in their ability to prepare for the hearing by the Complainant’s delay in complying with the Tribunal’s disclosure order, and request that the hearing be re-scheduled to commence after March 2008.
43I do not see any reason why the hearing in this matter should be re-scheduled. At present, the hearing is not set to commence until February 19, 20081 almost two months away. The Commission identified its intention to bring a motion to add Rittal as a party respondent to this proceeding when it filed its pleadings in early July 2007 and the hearing dates were set on the Pre-Hearing Conference Call with full knowledge of the Commission’s motion and the timelines for dealing with the motion. While Rittal itself did not participate on the Pre-Hearing Conference Call, counsel for the Respondents was asked to confirm by November 2, 2007 whether he was retained to act on Rittal’s behalf, and this was done. As a result, Rittal itself has been aware of the Commission’s motion, as well as the timelines for dealing with the motion and the scheduled hearing dates, since November 2, 2007.
44Further, this does not appear to be a case where extensive new facts or events will need to be pleaded as a result of Rittal being added. With regard to the disclosure requests, the only additional information that I have required to be disclosed relates to the consulting services being provided by the Complainant and perhaps to the litigation between the Complainant and IVU AG. If the Respondents require additional time to prepare for cross-examination of the Complainant on these specific points, then this can be accommodated in the context of the hearing without any need to re-schedule the dates currently set.
45Accordingly, the Respondents’ request for the hearing dates in this matter to be re-scheduled is denied. The hearing will proceed on February 19, 20 and 21 and March 26 and 27, 2008.
OTHER MATTERS
46Following the Pre-Hearing Conference Call in this matter, the Tribunal received correspondence from the parties which was excessively argumentative and which contained personal attacks unrelated to any genuine issue being raised or relief being sought. The Tribunal should receive correspondence only when the parties have been asked to submit material to the Tribunal or when there is an issue that a party genuinely needs to raise with the Tribunal. In either case, material submitted to the Tribunal should be concise and should only contain information directly pertinent either to what has been requested by the Tribunal or to the issue being raised.
ORDER
47For all of the foregoing reasons, the Tribunal makes the following Order:
a. Rittal GmbH & Co. KG shall be added as a party Respondent to this proceeding and that amended pleadings be filed in accordance with the following timetable:
The Commission and the Complainant shall file amended pleadings by no later than January 11, 2008 identifying Rittal as an added Respondent and setting out any further facts, issues or remedies as may relate to Rittal.
The Respondents and Rittal shall file amended pleadings in response by no later than January 25, 2008.
Any reply filed by the Commission and the Complainant shall be restricted solely to issues relating to Rittal and shall be filed by no later than February 1, 2008.
b. The Complainant shall advise the Respondents and the Commission by no later than January 7, 2008 whether his claim against IVU AG includes a period of time for which damages also are claimed in this proceeding, or if the litigation resulted in a settlement or award which includes a period of time for which damages also are claimed in this proceeding; and if so, I further order that the Complainant disclose to the Respondents and the Commission any and all pleadings in the litigation, any settlement or order in the litigation, and information regarding the current status of the litigation by no later than January 7, 2008.
c. The Complainant shall provide the following information and documents to the Respondents and the Commission by no later than January 7, 2008: the names of the companies for which he has provided consulting services since October 1, 2004; the period of time during which he has provided these services to each of these companies; and disclosure of any agreement under which he provides these services, including particulars of any terms as to the equity received or promised; and
d. The hearing in this matter will proceed on February 19, 20 and 21 and March 26 and 27, 2008.
I am not seized of this matter.
Dated at Toronto, this 21st day of December, 2007.
“signed by”
Mark Hart Vice-Chair