HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Duane McKay

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Vibrant Power Inc., John DaSilva and Dino Rossi Sr.

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: May 8, 2008

Citation: 2008 HRTO 28

Indexed as: McKay v. Vibrant Power 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

1The Commission made a Request for an Order during Proceedings pursuant to Rule 77 of the Tribunal’s Rules of Practice for a pre-hearing ruling that a document is admissible at the hearing. The Commission also made a request to amend its pleading to add an additional remedy.

2The Request was heard by way of written submissions supplemented by oral submissions on May 7, 2008. I ruled orally that the document would not be admitted and the Commission’s request to amend its pleadings was denied. These are the reasons for my oral ruling.

THE COMPLAINT

3Duane McKay self identifies as a Black person. He is employed in the warehouse department of Vibrant Power Inc. (“Vibrant”). He filed a complaint on December 13, 2004 alleging that Vibrant discriminated against him in employment on the basis of colour and race by paying him a substantially lower salary than those paid to White co-workers, contrary to sections 5(1) and 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He also names John DaSilva, the warehouse manager and Dino Rossi, President of Vibrant, as personal respondents. The respondents assert that the salaries of the warehouse employees are based solely on the merit and ability of the workers and not on any prohibited ground under the Code. Mr. McKay continues to work for the respondents.

4The Tribunal’s proceedings commenced by conference call on August 3, 2007. The Commission filed its Statement of Facts and Issues (as required under the 2004 Rules of Procedure) on January 18, 2008 and the respondents filed their hearing brief (as required by the 2008 Rules of Practice) on February 11, 2008. A pre-hearing conference call was held on February 22, 2008 and dates for the hearing were scheduled for June 23, 24 and 25, 2008.

THE COMMISSION’S REQUEST

5On April 3, 2008 the Commission made a request for a pre-hearing ruling that an email dated February 14, 2008 sent by counsel for the respondents to counsel for Commission be admissible in these proceedings. The Commission also made a request to amend the complaint to add an allegation of reprisal. The Commission initially sought to rely upon the document as a form of “similar fact evidence” relating to the issue of reprisal against the complainant.

6The respondents objected to the admission of the email on the basis that the email is subject to solicitor-client privilege, that such privilege is absolute, and that the privilege has not been waived.

7The Tribunal scheduled a conference call to hear oral submissions on May 7, 2008 to supplement the parties’ written submissions.

8On May 2, 2008 the Commission withdrew its request to amend the complaint to add an allegation of reprisal and withdrew its request to rely upon the contested email as a form of “similar fact evidence” supporting a finding of reprisal. However, the Commission continued to seek admission of the email for the purpose of supporting the following amended remedy:

For a period of two years from the date of this Order the respondent will submit to a monitor, appointed by the Tribunal, information and documentation relating to any and all terminations of employment within the corporation.

THE CONTESTED DOCUMENT

9The contested email was sent by counsel for the respondents to counsel for the Commission on February 14, 2008. The text of the email is addressed to “Dino” in reference to Mr. Rossi, the President of Vibrant. The email contains a brief communication from the counsel to the client, referring to a previous string of emails between Commission counsel and respondents’ counsel exploring the possibility of settling the complaint. It also contains a reference to the potential future termination of the complainant.

SOLICITOR-CLIENT PRIVILEGE

10There is no dispute that the email of February 14, 2008 contains a communication from counsel to the client and as such falls within the class of solicitor-client privilege. The Commission asserted that the document is nonetheless admissible as an exception to solicitor-client privilege, relying upon the case of Dublin v. Montessori Jewish Day School of Toronto, 2007 CanLII 8923 (ON SC), [2007] O.J. No. 1062 (S.C.J.). Alternatively, the Commission asserted that the email amounted to business advice. The respondents deny that there are any exceptions to solicitor-client privilege. I do not need to decide whether the document falls within an exception to solicitor-client privilege, in light of my conclusion that the document is not relevant to an issue in this proceeding and in any event, the document is so prejudicial to the respondents that it should not be admitted.

RELEVANCE

11The substance of the complaint, as confirmed by the Commission’s Statement of Facts and Issues, is that the respondents discriminated against the complainant by paying him a lower wage than White colleagues for substantially similar work. The remedies requested by the Commission, before the contested email appeared, included an order for the payment of lost wages, the development of a human rights policy, human rights training for the personal respondents, the posting of Code cards and the development of a process of annual salary reviews.

12How is the e-mail of February 14, 2008 relevant to the issues and remedies sought in this complaint? The Commission argued that the statement contained in the email supports an inference that respondents’ counsel was counselling his client to terminate the complainant for filing a human rights complaint, which supports a further inference that counsel’s “mindset” is shared by the personal respondent Mr. Rossi.

13I note that the statement contained in the February 14, 2008 email is a statement by counsel to Mr. Rossi. It is not a statement by Mr. Rossi and as such is only marginally, if at all, relevant to Mr. Rossi’s state of mind. It is also only remotely, if at all, relevant to the issue of whether Mr. Rossi paid Mr. McKay a discriminatory wage.

14In effect, the Commission is arguing that Mr. Rossi has a “propensity to discriminate” or he has a “bad character” because he is the type of person who would take advice from his lawyer to deliberately terminate an employee who has filed a complaint under the Code. In my view, this type of “bad character” evidence is no more relevant than evidence of good character which the Tribunal has consistently refused to admit.

Prejudice to the respondent outweighs ITS PROBATIVE VALUE

15In any event, even if the email of February 14, 2008 was relevant to an issue arising from the complaint or the remedies sought, which I find it is not, the inferences which the Commission is asking the Tribunal to draw are so inflammatory and prejudicial to the respondents that they far outweigh the probative value of the evidence.

Request to amend the Remedies sought

16As stated previously, on May 2, 2008, the Commission sought to amend the pleadings to add the following remedy:

For a period of two years from the date of this Order the respondent will submit to a monitor, appointed by the Tribunal, information and documentation relating to any and all terminations of employment within the corporation.

17This remedy does not relate in any way to the alleged discrimination set out in the complaint or the Commission’s Statement of Facts and Issues. The only reason to add this remedy, at this stage of the proceedings, is to bolster the Commission’s argument that the email of February 14, 2008 is relevant to a remedy sought in the hearing. It is not appropriate, in my view, to seek to add a remedy completely unrelated to the original complaint, in order to render a contested document admissible.

18The Commission’s request to amend the pleadings to add the requested remedy is denied.

ORDERS

19The email of February 14, 2008 will not be admitted as a document in this hearing.

20The Commission’s request to amend the pleadings to add the requested remedy is denied.

21The hearing will continue as scheduled on June 23, 24 and 25, 2008.