Grosberg v. 2024757 Ontario Inc., 2008 HRTO 18

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rebecca Grosberg

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

2024757 Ontario Inc. o/a St. Louis Bar & Grill and Al Kassim

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: March18, 2008

Citation: 2008 HRTO 18

Indexed as: Grosberg v. 2024757 Ontario Inc.

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@jontario.ca

Website www.hrto.ca

INTRODUCTION

1During a pre-hearing conference call on February 15, 2008, the Tribunal indicated that it would issue a written interim decision in response to the respondents’ motion for further particulars once the respondents had filed their response to the Commission’s Statement of Facts, Issues and Remedy (“pleadings”).

2As will be discussed in greater detail below, the respondents did not bring a motion for further particulars and therefore it is not necessary to issue a written decision on that matter. However, for case management purposes, the Tribunal is issuing this interim decision to ensure that this case proceeds fairly and expeditiously.

BACKGROUND

3On April 23, 2004, the complainant filed a complaint with the Human Rights Commission alleging discrimination and harassment on the basis of sex, ethnic origin, and creed contrary to sections 5(1), 5(2) 7(2) and 9 of the Human Rights Code, R.S.O. 1990, c.H. 19, as amended (the “Code”). She also asserted in her complaint that the respondents took certain steps against her in reprisal for enforcing her rights under the Code, contrary to sections 8 and 9 of the Code.

4By letter dated April 20, 2007 (received by the Tribunal on May 2, 2007), the Commission advised the Tribunal that the Commission had decided, pursuant to section 36(1) of the Code, to refer the subject matter of the complaint to the Human Rights Tribunal of Ontario so that the Tribunal may hold a hearing on the merits of the case (the “referral letter”). Enclosed with the Commission’s referral letter was the correspondence sent to the parties advising of the Commission’s decision to refer the complaint to the Tribunal, the complaint dated April 23, 2004 and what appears to be the respondents’ response to the complaint. This is all the material that the Tribunal received from the Commission in the referral letter.

5The Tribunal commenced its proceedings by convening an initial conference call for May 30, 2007 at 9:00 a.m. The complainant represented herself, Commission counsel represented the Commission, and the respondents’ counsel represented the corporate respondent and the personal respondent. That conference call was led by another Vice-Chair of the Tribunal. The parties agreed to attempt mediation before that Vice-Chair on October 23, 2007. On October 9, 2007 the Commission served its mediation brief and the Commission’s disclosure of the investigation file on the other parties.

6Mediation was unsuccessful and the following dates for exchange of pleadings and disclosure were set. The Commission and the complainant were to file their pleadings and disclose their documents by December 6, 2007. The respondents were to file their response and provide their disclosure by January 18, 2008 and replies, if any, were to be filed by January 25,2008. The parties were also advised that the Tribunal would contact them, once an adjudicator was assigned, to conduct a pre-hearing conference call to set dates for the hearing.

7I am the Vice-Chair assigned to conduct the pre-hearing conference call following the close of pleadings and response and replies, and to hear and decide the case. Needless to say, I have no knowledge about the mediation process conducted by the Vice-Chair on October 23, 2007. I have not seen the mediation briefs of the parties nor the Commission’s disclosure of its investigation file.

8I note that between the date the Commission’s pleadings were due and the date the respondents’ response was due, the Tribunal’s Rules of Practice changed. Until January 30, 2008, the 2004 Rules of Practice (“2004 Rules“) applied. Effective January 31, 2008, the Tribunal 2008 Rules of Practice (“2008 Rules“) came into effect. The Tribunal sent a letter to the parties in this proceeding on February 7, 2008 advising that the 2008 Rules apply to complaints currently before the Tribunal, although any deadlines already set by the Tribunal would not be affected. The letter also stated that if a party wished to raise any issue related to the application of the new Rules to their proceedings, they were directed to address their submissions to the Registrar, along with a copy to all the other parties. I note that no party has made such a submission to the Registrar in this proceeding.

9The 2008 Rules are not significantly different from the 2004 Rules, although the terminology changed. Instead of Pleadings (Rule 37 to 40 of the 2004 Rules) and disclosure (Rules 41 to 48 of the 2004 Rules), the 2008 Rules refer to hearing briefs and disclosure (Rules 57 to 65 of the 2008 Rules). Instead of “motions” to obtain an order during a proceeding (Rules 57 to 60 of the 2004 Rules), parties are directed to make a “request for an order during proceedings” under Rules 77 to 81 of the 2008 Rules. In this decision, I refer to the 2004 Rules or the 2008 Rules as applicable.

Commission’s Request for an Extension of Time to File its Pleadings

10On December 7, 2007, one day after the Commission’s pleadings were due, the Commission faxed a request to the Tribunal at 4:51 p.m. seeking an extension to file its pleadings on “Tuesday of next week” which was December 11, 2007. The Tribunal granted this request confirming the extension of time to file Commission pleadings to December 11, 2007. The Tribunal also extended the times for the respondents to file their pleadings and provide their disclosure to January 22, 2008 and extended the date for replies ,if any, to January 30, 2008. Although the Tribunal’s letter may have given the impression that the Commission’s request was received on December 11, 2007, this was not case.

11On December 11, 2007 at 8:09 p.m. (according to the facsimile mark on the letter), the Tribunal received the Commission’s pleadings. The 2004 Rules provided that a document delivered by facsimile after 5:00 p.m. is deemed to be served on the next day (Rule 23). Thus the Commission’s pleadings are deemed to have been received by the Tribunal on December 12, 2007 (one day after the extension granted).

12I digress here from the chronology of events to note that Rule 37 of the 2004 Rules requires the Commission to file pleadings containing, among other things, a statement of the facts and issues in dispute and the particulars in support of these allegations. In its pleadings in this case, under the Statement of Facts, the Commission states that it “relies on the facts and issues set out in the Complaint.” These pleadings must be served on the other parties and filed with the Tribunal.

13I note that Rule 41 of the 2004 Rules also requires the Commission to provide full disclosure and production of the results of its investigation to all parties on the same date as it files its pleadings. In this case, the Commission had already disclosed its investigation file on October 9, 2007. The Commission’s investigation file (which I emphasize I have not seen) generally includes witness statements, documents and evidence relating to the complaint obtained during the Commission’s investigation. I point this out for the purpose of explaining that when respondents file their response in accordance with Rule 39, and provide their disclosure in accordance with Rule 40 of the 2004 Rules they should generally have a good understanding of the facts and evidence obtained during the investigation. This should assist them in preparing their response.

14To resume the chronology, on December 12, 2007, the Tribunal wrote to the parties offering them dates for a pre-hearing conference call on February 13 or 15, 2008 between 9:30 a.m. to 4:00 p.m. or February 19 to 22, 2008 between 9:30 to 4:00 p.m. (following the anticipated close of pleadings on January 30, 2008).

15On December 12, 2007 the respondents’ counsel wrote to the Tribunal stating that it did not have an opportunity to make submissions in respect of the Commission’s request for an extension of time to file its pleadings and advising that the respondents “will be reserving its rights in this regard.“ The respondents’ counsel also noted that it only received the Commission’s pleadings on December 12, 2007, (one day after the extended deadline) and that the pleading delivered by the Commission did not “fully set out or fully particularize the case that our client must meet.” Respondents’ counsel stated that the respondents “will be reserving its rights with respect to both the timing and the substance of the pleadings.” Finally, with respect to the offered pre-hearing conference call dates, the respondents’ counsel advised that he would not be available for a conference call in February or March 2008 but stated “I suspect that I will have availability commencing in April 2008.” The Commission objected to this period of delay for setting a pre-hearing conference call to set dates for the hearing.

16On December 13, 2007, the Tribunal wrote the parties noting that there is no prejudice to the parties in granting an extension to file pleadings. The Tribunal also extended the date for the respondents to file their response to January 23, 2008 (adding an extra day since the respondents had not received the Commission’s pleadings until December 12, 2007). The date for filing replies remained January 30, 2008.

17I note that the Commission requested an extension after the date for filing pleadings. This is not appropriate. Requests for an extension of a Tribunal deadline should be made prior to the deadline and sufficiently in advance of the deadline that the Tribunal has time to make a decision on the request. Further, the Commission should contact the respondents and the complanaint first and advise the Tribunal whether or not they object. Further, the request should contain some explanation as to why an extension is required. Nonetheless, the Tribunal did grant an extension of six days in this case on the basis that this would not cause any prejudice to any party. If the respondents were prejudiced in any way by this six-day (or seven-day) extension, they could have brought a motion under Rule 57 of the 2004 Rules of Practice seeking relief for any prejudice they experienced. Alternatively, they could now seek a Request for an Order During Proceedings under Rules 77 to 81 of the 2008 Rules identifying the prejudice, if any, that they experienced and seeking a remedy.

Setting the Pre-hearing Conference Call Date

18In its letter of December 13, 2007, the Tribunal pointed out that the conference call would last no more than hour and that the Tribunal could make itself available earlier or later in the day for a conference call. The Tribunal further noted that the purpose of the conference call was to set hearing dates and deal with any preliminary issues. The letter ended with a request to the respondents' counsel to “advise which dates he can be available earlier or later in the day of the dates offered, and, or propose other more viable dates in February.”

19The Tribunal did not receive a response from respondents’ counsel. In a letter dated December 24, 2007, the Tribunal set the date for the pre-hearing conference call peremptorily for February 15, 2008 at 9:00 a.m. The Tribunal’s letter stated: “It is not acceptable that counsel cannot make himself available over a two-month period for the purpose of setting hearing dates.” The letter also stated : “The Respondents should arrange to attend on the conference call or arrange for someone to attend on the conference call to arrange dates for the hearing. If the Respondents do not attend, the dates for the hearing will be set without further consultation.”

The Pre-Hearing Conference Call on February 15, 2008

20The respondents did not respond to the Tribunal’s letter of December 24, 2007 or indicate whether or not they would attend the pre-hearing conference call on February 15, 2008 at 9:00 a.m. The deadline for filing a response to the Commission’s pleadings was January 23, 2008. The respondents did not file a response by January 23, 2008 nor seek an extension in the time for filing a response, either before or after the deadline.

21On February 15, 2008 at 9:00 a.m. I commenced the conference call. Commission counsel and the complainant dialled into the conference call. The respondents did not appear on the call initially. I confirmed with the Registrar that the respondents had not contacted the Tribunal with any last minute request for an adjournment. I was satisfied that the respondents had notice of the conference call. I waited until 9:15 a.m. Then I commenced to discuss hearing dates with Commission counsel. At approximately 9:20 a.m., counsel for the respondents joined the conference call. The respondents’ counsel suggested that it was inappropriate for the Tribunal to begin setting hearing dates in the respondents’ absence.

22The Tribunal had not received any communication from the respondents since December 12, 2007. The Tribunal had not received a response to the Commission’s pleadings. The Tribunal had specifically advised the respondents that hearing dates would be set whether or not the respondents attended the conference call. In my view, the Tribunal proceeded appropriately in preparing to set hearing dates in this case, where the respondents had not contacted the Tribunal for two months, did not file a response to the Commission’s pleadings and did not attend the conference call in a timely fashion. Once respondents’ counsel joined the call, the Tribunal recommenced the conference call to deal with the respondents’ failure to file a response and to set dates for the hearing with the respondents’ input.

Respondents’ Failure to File a Response and Alleged Lack of Particulars in the Commission’s Pleadings

23The respondents’ counsel asserted on the conference call that it did not file a response to the Commission’s pleading because the Commission’s pleadings were too vague and lacking in sufficient clarity to enable the respondents to respond.

24In my view, it is not appropriate for a party to simply ignore its obligations under the Tribunal Rules, neither filing a response nor indicating why it was not filing a response nor seeking further particulars from the Commission.

25In Garrelhas v. ICE Consultants Inc. 2005 HRTO 51, the Chair of the Tribunal stated:

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.

26During the conference call I indicated to the respondents that Tribunal case law suggested that the appropriate method of procedure is to file a response and bring a motion seeking further particulars, if necessary. That oral direction was reconfirmed in a Tribunal letter to the parties dated February 15, 2008:

The purpose of the conference call was to schedule dates for a hearing. However, the Respondents had not filed a response to the Tribunal’s pleadings. The Respondents submitted at the conference call that the Commission’s pleadings are too vague and lacking in sufficient clarity to enable the Respondents to respond. The Commission’s pleadings essentially consist of the repetition of the allegations set out in the complaint. The Respondents are directed to file a response to the Commission’s pleadings by the deadlines set out below. That response shall set out a response, to the extent the Respondent is able, to each allegation in the complaint. 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 of the Commission's pleadings. The Commission shall provide detailed submissions in response to any issue raised by the Respondents related to the sufficiency of the pleadings. The Respondent shall file a reply to the Commission’s submissions, if any, by the deadline set out below.

Respondents: Friday February 29, 2008

Commission: Friday March 7, 2008

Reply, if any: Friday March 14, 2008

The parties are directed to the following Tribunal decisions regarding the standard of particulars expected by the Tribunal: Garrelhas v. ICE Consultants Inc. (No. 2) 2006 HRTO 6 and Persaud v. Toronto Dist. School Board 2007 HRTO 39.

The Tribunal will issue a written decision responding to the request for particulars.

A further conference call has been agreed to by the parties for March 25, 2008 at 10:00 a.m.

27On February 29, 2008, the respondents’ counsel filed their response to the Commission’s pleadings in accordance with Rule 38 of the 2004 Rules and the Tribunal’s direction of February 15, 2008. I note that the respondents have been permitted to file their response five weeks after the Tribunal deadline of January 23, 2008.

28In its response, the respondents rely on the facts set out in the response to the complaint (much as the Commission had relied on the facts set out in the complaint). Respondents’ counsel also relied on the facts and issues set out in their counsel’s letter to Angela Vincenzo dated December 21, 2006. The Tribunal is not in receipt of the letter of December 21, 2006. As the respondents are relying upon this December 21, 2006 letter as part of their response, they are directed to provide a copy of that letter to the Tribunal and to the other parties.

29The Commission and the complainant did not file any materials in response to the respondents’ response.

30The respondents’ response does not identify any preliminary motions (see Rule 39(e) of the 2004 Rules) regarding the sufficiency of Commission’s pleading except for the following statement: “The Respondents state and the fact is that the Commission’s pleadings are too vague and are lacking in particulars.” There are no details about which facts are insufficient, what more information is required and why. There is no request for an order to address the alleged inadequacies of the Commission’s pleadings.

31In my view, I have no proper motion (Rule 57 of the 2004 Rules) or request (Rules 77 to 81 of the 2008 Rules) before me regarding the alleged lack of particulars in the Commission’s pleadings and therefore cannot make any decision on this matter.

32I wish to emphasize that hearing dates are being set from July 2008, for reasons that are discussed below. The parties have ample opportunity between now and then to make or request further disclosure, amend their pleadings, or to make a “request for an order during proceedings” under Rules 77 to 81 regarding any insufficiencies in the pleadings or disclosure of any other party. A request for further particulars under Rules 77 to 81, if one is made, should clearly specify each fact which is alleged to be insufficient and identify specifically what information is required in respect of each fact, and why such information is necessary to enable the party to respond to each fact. Failure to bring a request for further particulars or required disclosure in a timely fashion will be taken into consideration if any party seeks to adjourn scheduled hearing dates on the basis of lack of sufficient particulars or disclosure.

Hearing Dates

33During the conference call the Commission indicated that it anticipated five days to present its case, including the time needed for cross-examination by the respondents. The respondents anticipated that they would require 10 days to present the respondents’ case. Reply and argument were anticipated to take an additional two days, for a total of 17 days. The respondents’ counsel indicated that he would not be available to represent his clients until July 2008. The Commission indicated that it was not acceptable for respondents’ counsel to decline to set hearing dates for five months. I ruled that a five month period between the pre-hearing conference call to set dates and the setting of hearing dates in this case, while not ideal, is not so unreasonable a time period as to justify the Tribunal setting the dates peremptorily. The Commission was not prepared to set dates that far in advance, as summer vacation plans had not been finalized. Accordingly, the parties agreed to hold another conference call on March 25, 2008 at 10:00 a.m. to set dates for the hearing commencing July 2008.

34The respondents’ counsel asked that the hearing dates be set sequentially, that is, five days a week until the hearing is completed. The Commission indicated that she could not attend five days/week for reasons related to health and family status. She agreed that she could sit four days per week, although she preferred three days per week. The parties agreed that it was extremely unlikely that 17 days sequentially would be found commencing July 2008, in light of summer vacation plans of counsel and parties. Given the five-month delay requested by the respondents to start the hearing, Commission counsel’s need for accommodation from a five day per week schedule, and the difficulty of scheduling hearing dates sequentially during the summer months. I ruled that the Tribunal would schedule the 17 days of hearing requested by the parties commencing July 2008 in three or four day periods. This form of proceeding, while not ideal, is necessitated by the needs of both parties.

35I have serious concerns that a complaint of this nature should not require 17 days of hearing. I emphasize that Rule 13 of the 2008 Rules states that “the Tribunal will conduct its process, and will apply these Rules in the manner that will, in its opinion, facilitate the fair, just and expeditious resolution of the merits of a complaint.“ Accordingly, counsel are directed to be prepared to discuss at the March 25, 2008 conference call, the names of the witnesses they intend to call and a brief description of what they are anticipated to say. This will assist the Tribunal in scheduling hearing dates and providing case management directions as required.

A Word about Tribunal Deadlines

36The parties are now moving into the hearing stage of these proceedings. The parties are expected to henceforth adhere to the 2008 Rules. In particular, the parties are reminded that Rule 108 provides that a party will not be entitled to rely on facts or introduce evidence or documents that were not provided, disclosed, or produced in accordance with these Rules except with leave of the Tribunal.

37The following Rules are particularly important and I wish to highlight them here:

DELIVERY OF WITNESS STATEMENTS AND DOCUMENT BOOKS

70. The Commission must serve on the other parties, and file with the Tribunal, no later than 15 days prior to the commencement of the hearing into the substance of the complaint, the following:

(a) a document book containing a copy of all documents that the Commission intends to rely upon; and

(b) a list of all witnesses and a brief summary of the intended evidence of each witness.

71. A Complainant is entitled to rely on the document book, witness list and summaries of intended evidence filed by the Commission. However, if the Complainant intends to rely on documents and/or call witnesses in addition to those disclosed by the Commission, the Complainant must serve on the other parties, and file with the Tribunal, no later than 10 days prior to the commencement of the hearing into the substance of the complaint, the following:

(a) a document book containing a copy of all additional documents that the Complainant intends to rely upon; and

(b) a list of all additional witnesses and a brief summary of the intended evidence of each witness.

72. The Respondent(s) must serve on the other parties, and file with the Tribunal, no later than 10 days prior to the commencement of the hearing into the substance of the complaint, the following:

(a) a document book containing a copy of all documents that the Respondent(s) intends to rely upon, excluding any documents already filed by another party; and

(b) a list of all witnesses and a brief summary of the intended evidence of each witness.

38I would not want the parties to be under the misapprehension that because each party has been permitted to file their pleadings and response late (the Commission seven days late; the respondents five weeks late) similar latitude will be granted with respect to the filing of witness statements and document books. A request for an extension of time to file witness statements and document books has the potential to derail scheduled hearing dates and will be scrutinized carefully by the Tribunal.

summary

39To summarize, I find that there is no need, at this stage, to issue an interim decision regarding the sufficiency of the Commission’s pleadings.

40The respondents are directed to provide the Tribunal and the other parties with a copy of the letter of December 21, 2006 referred to in their response to the Commission’s pleadings.

41These proceedings will continue by pre-hearing conference call on March 25, 2008 at 10:00 a.m. Counsel are directed to be prepared to discuss at the March 25, 2008 conference call, the names of the witnesses they intend to call and a brief description of what they are anticipated to say.