Hancock v. McKesson Canada, 2008 HRTO 362

Human Rights Tribunal of Ontario

B E T W E E N:

Lilia Hancock

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

McKesson Canada Corporation, Frank Sedore, Marvin Kalchman, Joe Varkul and Alfredo DaSilva

Respondents

INTERIM DECISION

Adjudicator: Mary Anne McKellar

Date: December 4, 2008

Citation: 2008 HRTO 362

Indexed as: Hancock v. McKesson Canada

1I issued a decision in this matter, Hancock v. McKesson, 2008 HRT0 42. Paragraph 56 of that decision provided as follows:

56The parties are therefore directed to advise the Tribunal (and each other) by August 15, 2008 of their position with respect to whether an oral hearing is required, and if so, to identify which of the witnesses on their previously exchanged lists will be testifying about the investigation or about DaSilva’s conduct on December 14, 2000; what they are anticipated to say; and the approximate time required to entertain that testimony.

2By letter dated August 15, 2008, the Ontario Human Rights Commission (“the Commission”) advised as follows with respect to two proposed witnesses:

Ivyline Greene: Ms. Greene will testify regarding the treatment of female employees by the supervisor Mr. DaSilva, and, in particular, sexual comments made by him to her and sexual jokes he told in the workplace.

Shawn Harris: Mr. Harris will testify about the prevalence of sexualized jokes in the workplace.

3In a conference call convened on September 17, 2008, counsel for all of the responding parties (with the exception of DaSilva) indicated her objection to the proposed evidence of Ms. Greene and Mr. Harris. She filed written submissions in support of that position on October 16, 2008. Essentially, the assertion is that neither of these witnesses is proposed to provide evidence with respect to DaSilva’s conduct towards the complainant on December 14, 2001, nor (as revealed by the investigation notes) does either of them appear to have any knowledge of his conduct on that occasion. Her contention is that the evidence is irrelevant and does not meet the standard of admissibility for similar fact evidence.

4Based on my review of the complaint filed in this matter, and the submissions and authorities filed by the moving parties, I am inclined to agree that the proposed testimony of Ms. Greene and Mr. Harris is not relevant to any issue remaining in this proceeding. Before ruling definitively on that issue, however, I invite the Commission to file written submissions if it disagrees with that view.

5Any submissions filed by the Commission should be delivered to the other parties and filed with the Registrar-Transition of the Human Rights Tribunal of Ontario no later than December 15, 2008. Following receipt of such submissions, I will communicate my final determination on the question of the admissibility of the proposed testimony of Ms. Greene and Mr. Harris to the parties as soon as possible. If the Commission does not file submissions, then my determination (consistent with my comments in this decision) will be that Ms. Greene and Mr. Harris shall not be permitted to testify at the hearing.

6The parties and the Tribunal are currently holding the week of January 12th, 2009 for the hearing into this matter. They are directed to consult with one another and advise the Registrar-Transition as soon as possible on or after December 16, 2008 if they agree that some of those dates may be released, and with their preferred dates for the hearing.