Campe v. Borland Canada Inc. et al., 2008 HRTO 17

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Campe

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Borland Canada Inc., Borland Software Corporation,

David Schmiedendorf and Christopher Corey

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: February 29, 2008

Citation: 2008 HRTO 17

Indexed as: Campe v. Borland Canada Inc. et al.

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@ontario.ca

Website www.hrto.ca

INTRODUCTION

1This interim decision deals with the respondents’ proposed motion to strike certain paragraphs of the complainant’s Statement of Facts (“pleadings”) prior to the respondents filing their pleadings.

BACKGROUND

2The complaint in this matter is dated June 17, 2003, and alleges discrimination on the basis of sex and reprisal in relation to the complainant’s employment and termination from employment with Borland Canada Inc., contrary to sections 5(1), 8 and 9 of the Human Rights Code, R.S.O. 1990, c.H. 19, as amended (the “Code”). The Commission referred the complaint to the Tribunal, by letter dated April 30, 2007 (amended May 14, 2007).

3Following mediation in September 2007, the Tribunal established a schedule for the parties to exchange pleadings and disclosure. The Commission and the complainant filed their pleadings on November 16, 2007, and the respondents were required to file their materials by January 21, 2008. Replies were due on February 11, 2008.

4On November 20, 2007, Counsel for the respondents wrote to the Tribunal, stating that “as a result of new allegations made by the complainant in her Statement of Facts, we are considering our options with regard to a Motion to Strike and will advise as to our position on that issue once we have had an opportunity to review the file with our clients.”

5On January 4, 2008, the respondents wrote to the complainant and the Commission requesting that the complainant agree to strike out the following paragraphs of her pleadings: 18, 19, 20, 21, 24, 25, 29, 33(f), 34, 36, 40, 42, 43, 45 and 47. The respondents also requested that the complainant and/or the Commission provide full particulars with respect to paragraphs 38 and 41 of the complainant’s pleadings. The respondents submitted they were not in a position to file their responding pleadings by January 21, 2008, and would not be in a position to do so until these outstanding issues related to the complainant’s pleadings were resolved, either by consent or through a motion. The respondents also requested that the complainant and the Commission consent to their request for an extension of time to file their pleadings nine weeks subsequent to receiving amended pleadings responsive to their above requests to strike out paragraphs and provide particulars. This correspondence was provided to the Tribunal on the same date.

6The complainant and the Commission responded on January 17, 2008. The complainant provided particulars with respect to paragraphs 38 and 41 of her pleadings however, both the complainant and the Commission indicated they would not consent to the respondents’ request to strike.

7The Commission asked that the Tribunal not set a date for the hearing of a motion and, instead, exercise its power to conduct an expeditious and fair hearing. The Commission submitted that motions to strike or demand particulars before pleadings are filed are reflective of an overly judicialized, highly complex and inaccessible adjudicative process and that the human rights process in Ontario ought to reflect principles of access and expedition. Garrelhas v. ICE Consultants Inc. (No. 1), 2005 HRTO 51, in which the Tribunal found that a respondent’s motion seeking further particulars and an Order striking out certain paragraphs prior to filing pleadings was premature, was cited in support.

8In reply dated January 18, 2008, the respondents submitted that their requests were not an “attempt to overly judicialize and prolong these proceedings”, but, rather, were legitimate requests that address the reality of their situation and aim at ensuring fairness in the proceedings. The respondents stated they were unable to file their pleadings and intended to bring a motion.

9On January 23, 2008, the Tribunal directed the parties’ attention to the Tribunal’s decision in Garrelhas, supra, and, in particular, paragraph 14 of the decision which states:

No 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 (emphasis added).

10The Tribunal directed the respondents to provide reasons, without legal argument, as to why their intended motion was not premature and should be heard prior to the respondents filing their response. The Tribunal advised that, following a review of the respondents’ reasons, it may invite the other parties to respond or rule the respondents’ intended motion premature and direct the respondents to file pleadings.

DECISION AND ANALYSIS

11The respondents assert Garrelhas, supra is noteworthy in that it demonstrates the delay caused as a result of requiring that pleadings be delivered prior to the resolution of preliminary objections. By requiring that pleadings be filed before preliminary objections were heard, the respondents calculate the Tribunal in Garrelhas, supra took ten months to determine an issue it could have resolved in three months. The respondents submit that the additional time and cost suffered by the parties in that case does not support the conclusion that filing pleadings, which may be incomplete and may require re-drafting, prior to the hearing of preliminary objections, serves the interest of the parties in achieving an expeditious resolution.

12The respondents also submit that allowing a hearing of the motion on the preliminary objections prior to the filing of pleadings will give the respondents an opportunity to investigate, prepare and file a single set of pleadings which fully address the allegations against them. This will save the respondents unnecessary time and cost involved in filing multiple sets of pleadings and shorten the overall time period associated with the filing of pleadings.

13The respondents also rely on their previous correspondence in which they identify numerous allegations they assert are improperly pleaded and should be struck. The respondents submit that the complainant is attempting to circumvent the Tribunal’s Rules of Practice (the “Rules”) by including fresh allegations in the pleadings without seeking the consent of the respondents or an Order of the Tribunal. They assert these fresh allegations were not the subject of the complaint or the Commission’s investigation and were not raised in the Commission’s Case Analysis Report. Moreover, the complainant has not provided any explanation to justify the significant delay, more than four years, in raising these fresh allegations.

14The respondents submit they have been, and will continue to be, seriously prejudiced in their ability to investigate, gather and preserve documents and evidence related to the fresh allegations and, ultimately, to answer and defend against them.

15The respondents requested an early date for the hearing of a motion with respect to these issues and indicated they would be prepared to agree to file their responding pleadings four to five weeks following disposition of the motion.

16In Garrelhas, supra, the Tribunal noted 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.” The Tribunal also referred to Section 2 of the Statutory Powers Procedures Act, R.S.O 1990, c. S.22, which provides that the Tribunal’s Rules “shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.” The Tribunal identified a number of reasons why, except in the rarest of circumstances, preliminary and procedural objections should not be brought prior to a party filing its pleadings and making disclosure. These reasons were recently summarized in Persaud v. Toronto District School Board, 2007 HRTO 39, as follows:

a) 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.

b) 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.

c) 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. By the very nature of proceedings before the Tribunal and the fact finding process before the matter is referred to the Tribunal, there should have been a great deal of information exchanged between the parties. Even where allegations in the Commission’s or Complainant’s pleadings are vague or unspecific, the nature of the allegations must be examined 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, in order to determine whether the Respondents have been provided with enough information to allow them to file a Response that adequately fulfils the requirements of the Rules.

17In my view, the facts in Garrelhas, supra do not demonstrate that delay is caused as a result of requiring that pleadings be delivered prior to the resolution of preliminary objections to pleadings. It must be noted that, in Garrelhas, supra the respondents’ motion was heard (although determined to be premature) prior to the respondents filing their pleadings and remaining objections to the Commission’s pleadings. In my view, requiring parties to file pleadings prior to dealing with preliminary objections is generally more efficient in terms of case management and dispute resolution. As the Tribunal recognized in Garrelhas, the bringing of motions for further particulars or the striking of paragraphs in pleadings at the pleading stage tends to slow down the process and often leads to unnecessary proceedings. Requiring parties to file their pleadings prior to dealing with preliminary issues can also assist the parties and the Tribunal in narrowing issues and having all objections dealt with together.

18Further, this approach is consistent with the Tribunal’s Rules in effect at the time the schedule for the exchange of pleadings was set. Rule 39, in particular requires respondents to provide a response to the facts, issues and remedies identified by the Commission and/or complainant and identify any preliminary motions in their pleadings. The Tribunal’s Rules also provide for pre-hearing conferences, generally held after pleadings have been exchanged, at which the Tribunal may address any issue for the purpose of simplifying or expediting the course of a proceeding, including the identification and resolution of any preliminary issues or motions.

19I also disagree with the respondents’ assertion that requiring pleadings be filed prior to the resolution of objections to pleadings will result in parties having to file multiple sets of pleadings. While some amendments to pleadings may be required, it is more efficient to consider objections in the context of pleadings when resolving these issues.

20At the pleadings stage, parties are required to set out their respective cases. The Commission and the complainant have an obligation to set out all the material facts upon which they intend to rely, thereby informing the respondents of the case to be met. While pleadings are meant to supplement complaints, they should not seek to expand the subject matter of a complaint improperly.

21In her complaint, the complainant alleges that she was subjected to discrimination on the basis of sex in employment. In particular, she alleges that the failure to provide her with pay equal to that of Business Development Managers constitutes discrimination on the basis of sex and that her employment was terminated because she is a woman. She alleges further that the termination of her employment, after her and others complained about pay policies, was a reprisal, contrary to the Code.

22While I make no findings at this stage of the proceedings as to whether the pleadings that the respondents seek to strike are somehow improper, the paragraphs in question appear to set out with some particularity the material facts upon which the complainant intends to rely, as required by the Tribunal’s Rules. With the possible exception of paragraph 25, the allegations set out in the pleadings, on their face, appear to fall within the subject matter of the complaint and do not appear to constitute fresh allegations.

23The respondents submit that, in paragraph 25, the complainant makes allegations regarding inappropriate and offensive comments by colleagues in the workplace, which are not included in the complaint or raised in the Case Analysis Report. They submit that it is virtually impossible to conduct an investigation into such fresh allegations, as it has been over five years since the comments were allegedly made and most of the individuals alleged to have been involved are no longer employed by the respondents. Again, while the Tribunal expresses no view as to the propriety of the particular paragraphs in question at this stage of the proceedings, the Tribunal notes the complaint does not appear to articulate any allegations of harassment.

24For the reasons outlined above, the respondents’ proposed motion to strike certain paragraphs of the complainant’s pleadings is premature. The parties should proceed with and complete the pleadings process set out in the Tribunal’s Rules. After the pleadings have been filed, any remaining issues can be dealt with at the Pre-Hearing Conference Call or by way of a Request for Order During Proceedings.

ORDER

25The Tribunal makes the following Order:

a. The respondents shall file their responding pleadings by no later than March 28, 2008

b. The Commission and the complainant shall file any Reply by no later than April 4, 2008.