Campe v. Borland Canada Inc., 2008 HRTO 40

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: July 4, 2008

Citation: 2008 HRTO 40

Indexed as: Campe v. Borland Canada Inc.

Human Rights Tribunal of Ontario

655 Bay Street, 14th Floor

Toronto ON M7A 2C7

Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar-transition@ontario.ca

Website www.hrto.ca

WRITTEN SUBMISSIONS BY

Borland Canada Inc., Borland Software Corporation, ) Karen M. Sargeant and

David Schmiedendorf and Christopher Corey, ) Kate McNeill, Counsel

Respondents )

Ontario Human Rights Commission ) Sharon Ffolkes Abrahams,

) Counsel

INTRODUCTION

1This interim decision deals with the respondents’ request for an order striking out certain paragraphs of the complainant’s Statement of Facts (“pleadings”) or, in the alternative, an order requiring the complainant and the Commission to provide full particulars with respect to any of the paragraphs in question that are not struck.

BACKGROUND

2The complaint in this matter, dated June 17, 2003, alleges discrimination on the basis of sex and reprisal in relation to the complainant’s employment and termination from employment with Borland Canada Inc. (“Borland”). In particular, the complaint alleges that the failure to provide the complainant with equal pay was discriminatory. The Commission referred the complaint to the Tribunal, by letter dated April 30, 2007 (amended May 14, 2007).

3Following mediation in September 2007, the Commission and the complainant filed their pleadings on November 16, 2007. In so doing, the Commission relied on the facts as set out in the complaint and the complainant’s pleadings.

4The respondents were required to file their materials by January 21, 2008, however, prior to that date, the respondents requested that the complainant and the Commission agree to strike out the following paragraphs of the complainant’s 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 that they would not be in a position to file their responding pleadings until these outstanding issues related to the complainant’s pleadings were resolved, either by consent or through a motion.

5The 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. In their reply dated January 18, 2008, the respondents stated they were unable to file their pleadings and intended to bring a motion.

6In an Interim Decision dated February 29, 2008, the Tribunal held that the respondents’ proposed motion was premature. The Tribunal directed the parties to complete the pleadings process set out in the Tribunal’s Rules of Practice and indicated that any remaining issues could be dealt with at the Pre-Hearing Conference Call or by way of a Request for an Order During Proceedings after pleadings had been filed.

7The respondents filed their pleadings on March 28, 2008, maintaining their request that the Tribunal strike the above-noted paragraphs of the complainant’s pleadings. The Commission filed a reply on April 8, 2008.

8The Tribunal determined that the respondents’ request for an order striking paragraphs of the complainant’s pleadings would be dealt with in writing and set a schedule for the exchange of submissions. The respondents filed their submissions on April 28, 2008, the Commission filed a response on May 8, 2008, and the respondents’ reply was received on May 16, 2008. The complainant did not file submissions.

DECISION AND ANALYSIS

Request to strike paragraphs from the complainant’s pleadings

9The respondents are first seeking an order striking paragraphs in the complainant’s pleadings on the basis that the allegations described in the paragraphs are untimely and improperly expand the scope of the inquiry before the Tribunal beyond the subject-matter of the complaint.

10The respondents submit that there is nothing in the complaint that indicated to them any intention on the part of the Commission or the complainant to make any allegations other than those specifically made in the complaint. The respondents contend that, had the complaint so indicated, they “would have been entitled to exercise their right under Section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”) to request that the Commission not deal with alleged incidents on the basis that they were trivial, frivolous, vexatious, or made in bad faith, or they occurred more than six months before the complaint was filed.” The respondents submit, therefore, that they have been prejudiced by not being put on notice that Section 34 might have applied.

11The respondents also submit that there is no information in the Case Analysis Report which indicated to them any intention to refer the subject-matter of the impugned allegations to the Tribunal or that the Commission had undertaken any investigation regarding the impugned allegations. Had the Case Analysis Report so indicated, the respondents submit that they would have had an opportunity to exercise their right to respond to those sections of the Report which may have addressed these allegations.

12The respondents submit that they were not aware of the Commission’s intention to “prosecute” the allegations in the paragraphs in question until they were served with the complainant’s pleadings, more than four years after the complaint was filed and more than five years since the conduct which forms the basis of the allegations is alleged to have occurred. Moreover, the complainant has not provided any explanation to justify the significant delay in raising these allegations.

13The respondents submit that they have no knowledge of the material facts supporting these fresh allegations and most of the individuals who are alleged to have been involved are no longer employed by the corporate respondents. The respondents take the position that they have been, and will continue to be, prejudiced in their ability to investigate, gather and preserve documents and evidence related to the allegations and, ultimately, to answer and defend against them.

14Relying on the decisions of the Board in Jeffrey v. Dofasco Inc., [2001] O.H.R.B.I.D. No. 8, at para. 36, and the Ontario Court of Appeal in Entrop v. Imperial Oil (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18, at para. 57, the respondents submit that it is well established that the Tribunal’s jurisdiction is circumscribed by the subject-matter of a complaint referred to it by the Commission.

15The respondents also refer to the decision of the Board in Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2, in which the Board dealt with a motion to strike the complainant’s pleadings alleging inadequacies of the respondent’s Wheel-Trans service and the inaccessibility of its conventional service. The complaint referred to the Board alleged the respondent’s imposition of a registration fee and requirement that prospective Wheel-Trans riders submit to an interview process were discriminatory. The Board found that the allegations in the pleadings relating to the inadequacies of the Wheel-Trans service and the inaccessibility of the respondent’s conventional service were beyond the scope of the complaint. In deciding to strike the pleadings, the Board considered the following questions:

Do the allegations form part of the continuum of facts of the complaint?

Would an amendment to the complaint to include these allegations be appropriate in the circumstances?

Do the allegations provide a useful context for considering the legal issues in the case?

16In addressing the first question, the Board in Odell considered that the complainant knew of the issues she sought to have added in her pleadings at the time she filed her complaint, yet her complaint specifically excluded matters other than the registration process and fee for Wheel-Trans use. The Board did not find that the allegations in question formed part of the continuum of the complaint. With respect to the remaining questions, the Board concluded that it would be an inequitable exercise of the Board’s discretion to permit the complainant to broaden the scope of her complaint, in light of the complainant’s conduct and the impact on the hearing and the other parties. Lastly, permitting the pleadings to stand would not assist the Board in providing context for the legal issues at stake.

17The Commission submits that the Odell case relied on by the respondents is distinguishable from the present case, in that the allegations the respondents seek to strike cannot be said to broaden the scope of the complaint, or to expand the subject-matter of the complaint referred to the Tribunal by the Commission, and no new grounds or issues are being added to the proceedings.

18The Commission instead relies on the Tribunal’s decision in Toneguzzo v. Kimberly-Clark Inc. (2005), 2005 HRTO 45, 55 C.H.R.R. D/49, in which the Tribunal dismissed a motion by the respondent seeking to strike paragraphs in the Commission’s pleadings. In that case, the respondent had argued that allegations in the pleadings, that were not set out in the original complaint, were beyond the jurisdiction of the Tribunal and did not form part of the subject-matter of the complaint. The Tribunal’s decision in Toneguzzo confirmed several fundamental principles concerning motions to strike pleadings on the basis that they were not included in the original complaint, some of which were more recently summarized in Persaud v. Toronto District School Board, 2008 HRTO 12, at para. 40, as follows:

that pleadings in a human rights proceeding ought not be scrutinized in the same manner as pleadings in civil proceedings; that the “subject matter of the complaint” is not restricted to the specific factual allegations set out in the original complaint form; that a human rights complaint is not in the nature of a criminal indictment, but rather is a notice to a respondent of the commencement of an administrative proceeding; that the wording of the Code makes clear that the Tribunal has the broad jurisdiction to inquire into all aspects of a matter referred to it; and that the defining of the case and scope of the inquiry before the Tribunal occurs at the point the complaint is referred to the Tribunal and during the period in which the Tribunal’s pre-hearing processes are engaged, not when a complaint is drafted (see paras. 53 to 59).

19However, as also noted in Persaud, the Tribunal in Toneguzzo, at para. 60, commented that “[t]his is not to say that the complaint form filed with the Commission is completely irrelevant in determining the ‘subject matter of the complaint’ within the meaning of Sections 36 and 39 of the Code.” The Tribunal in Toneguzzo stated further, at para. 63, that:

Ultimately, each case will turn on an assessment of what constitutes the real issue(s) in dispute between the parties and an assessment of whether the pleadings filed in fact seek to expand the nature of that dispute. The determination of that question will turn on, in part, a consideration of the original complaint.

20In declining the respondent’s motion to strike in Toneguzzo, the Tribunal found, at para. 69, that the impugned material facts, including those that occurred prior to the last alleged incident of discrimination set out in the complaint, were part of the continuum of events of the complaint and that the pleadings related to a single issue over a continuing time. The Tribunal found that the real issue in dispute between the parties, or the “essence of the complaint”, was the alleged failure of the respondent to accommodate the complainant, a long service employee who had a variety of chronic health problems. The Tribunal noted that the vast majority of the impugned paragraphs simply detailed when and to whom the complainant provided medical notes and information, or had discussions related to her chronic health problems and on-going efforts to seek accommodation.

21The respondents also argue that, although the Tribunal has no supervisory jurisdiction over the Commission, the Tribunal may be required to assess what lasting impact the Commission’s handling of a case has had on the fairness of the proceeding before it and, in particular, on the ability of a respondent before the Tribunal to make full answer and defence to the allegations against it. The respondents submit that an abuse of process may occur where the Commission or the complainant raise an allegation for determination by the Tribunal in an untimely manner or improperly attempt to expand the subject-matter of the complaint referred to the Tribunal by the Commission. The respondents rely, in part, on the decision of the Board in Commanda v. Rainbow Concrete Industries Ltd., [2002] O.H.R.B.I.D. No. 2, at paras. 78 and 80, in support of their submissions.

22The respondents submit that it would be an inequitable exercise of the Tribunal’s discretion, and an abuse of the Tribunal’s processes, if the complainant were permitted to expand the subject-matter of the complaint before the Tribunal by raising the allegations set out in the paragraphs in question of the complainant’s pleadings and if the Commission were permitted to “prosecute” the allegations.

Request for particulars

23In the event the Tribunal does not strike any of the paragraphs at issue, the respondents are seeking an order requiring the complainant and the Commission to provide full particulars with respect to any such paragraphs.

24The respondents submit that, where allegations made by a party in its pleadings do not include material facts such as when and where the alleged incidents which form the basis of the allegations occurred, as well as the names of such persons who are referred to in the allegations, the Tribunal may order the party to furnish further and better particulars. They rely on the decisions of the Board in Veljko Dubajic et al. v. Walbar Machine Products of Canada Limited (1980), 1980 CanLII 3911 (ON HRT), 1 C.H.R.R. D/228 (Ont. Bd. Inq.), at paras. 2006 and 2027, and Bhadauria v. Toronto (City) Board of Education (1987), 1987 CanLII 8498 (ON HRT), 9 C.H.R.R. D/4501 (Ont. Bd. Inq.), at para. 35083, in support of their submissions.

25Both the respondents and the Commission refer to the decision of the Board in Neusch v. Ontario (Ministry of Transportation), [2002] O.H.R.B.I.D. No. 11, wherein the Board noted, at para. 53, that “a complaint, as supplemented by the pleadings, should inform a respondent of the particular issues toward which proof must be directed and of the facts material to the issues relied on…” The decision of the Board in Neusch was also referred to in Garrelhas v. ICE Consultants Inc., 2005 HRTO 51, where the Tribunal went on to state as follows, at para. 21:

The Commission has an obligation to plead all of the material facts upon which it intends to rely. Generally speaking this should include particulars of the dates when, the places where, and the persons who, engaged in the allegedly improper actions or behaviour.

The Tribunal in Garrelhas also noted, at para. 22, that “[t]he filing of pleadings under the Tribunal’s Rules is the stage at which the Commission and the Complainant frame the case to be litigated, and there is an obligation to do so comprehensively.”

26The respondents submit that, in the event the Tribunal does not strike any of the paragraphs in question, the allegations must be particularized, including, without limitation, the dates, times and places of such incidents, the names of persons involved and other material facts related to such alleged incidents and conduct.

27The Commission, on the other hand, submits that it is not required to plead evidence and that, in effect, the respondents are seeking the evidentiary basis for the Commission’s case which the Commission is not required to provide at this stage of the proceedings. The Commission submits that, in any event, the pleadings have been sufficiently particularized so that the respondents know the case they have to meet.

Paragraph 18

28With respect to the facts alleged in each of the impugned paragraphs, the respondents submit that the complainant “has failed to make any allegation in this regard in the Complaint and no such allegation is raised in the Case Analysis Report.” They also submit, with respect to each paragraph, that “neither the Commission nor the Complainant has disclosed any documents which support this allegation.” Apart from a portion of paragraph 18, the Commission disagrees with the respondents’ position that the complainant’s pleadings should be struck.

29The Commission’s submissions state that the complainant consents to striking out that portion of paragraph 18 which states, “stock options as signing bonuses as well as”. I therefore order that this portion of paragraph 18 be struck.

30The remainder of paragraph 18 then contains the allegation that “male BDMs received guarantees of commission payouts in their first two Quarters with BCI”, which were not offered to the complainant. The Commission submits that this remaining allegation only came to the attention of the complainant when she was provided with disclosure of the Commission’s investigation file which included offers of employment to male Business Development Managers (“BDMs”). The Commission submits that these documents, which were presumably provided to the Commission by Borland, demonstrate that, from the outset of their employment, male and female sales personnel were treated differently with respect to compensation.

31In the present case, the essence of the complaint is the allegation that the complainant was subjected to discrimination on the basis of sex in employment. The complaint alleges that the failure to provide the complainant with pay equal to that of BDMs constitutes discrimination on the basis of sex and that her employment was terminated because she is a woman. The complaint alleges further that the termination of the complainant’s employment, after her and others complained about pay policies, was a reprisal, contrary to the Code.

32I note that a number of the allegations set out in the complaint that refer to male BDMs earning more than female Account Executives, including those in paragraphs j, k, and m, refer to earnings as including both salary and commission eligibility. Having regard to the principles set out in the case law reviewed above, I find that the remainder of paragraph 18 can fairly be said to be “part of the continuum of facts of the complaint” and is within the scope of the complaint which alleges discrimination on the basis of sex in employment, including the allegation that the failure to provide the complainant with pay equal to that of BDMs constitutes discrimination on the basis of sex. However, paragraph 18 does not specify which male BDMs are alleged to have received guarantees of commission payouts. The Commission and the complainant are therefore ordered to provide these particulars.

Paragraphs 19 and 20

33The respondents object to paragraph 19 of the complainant’s pleadings which states that sales personnel worked in teams, the complainant worked with another female Account Executive, and they both reported to the president. The respondents also object to paragraph 20 wherein the complainant alleges that both she and the other female Account Executive were responsible for and serviced their own separate client accounts, exercised the same duties, possessed the same level of responsibility, and neither individual exercised authority over the other.

34The complaint alleges at paragraph g that BDMs performed the same kind of work as Account Executives and were required to exercise the same level of skill, effort and responsibility. Paragraph h alleges that, “[i]n or about July, 2001, the one female Account Executive, whose remuneration was within the range of BDMs, was terminated.”

35In their response to the complaint, the respondents submitted that sales staff were assigned to teams consisting of a senior and a junior member, informally referred to by some as the senior BDM and junior Account Executive. They assert that BDMs were required to exercise a greater level of skill, effort and responsibility, generally had more industry experience, and were expected to achieve higher quotas. They also assert that the complainant was assigned as the junior Account Executive of the sales team, however, following the termination of the senior member’s employment, the complainant was offered and accepted the senior position.

36The allegations in paragraphs 19 and 20 of the complainant’s pleadings, specific to the relative responsibilities of the complainant and the other Account Executive on her team, appear to have arisen in reply to the position taken by the respondents in response to her complaint, including that the complainant held the junior position and was offered and accepted the senior position when the other Account Executive departed. While the complainant did not explicitly state in her complaint that she and the other Account Executive exercised the same duties, possessed the same level of authority and neither exercised authority over the other, she did allege, in paragraph g of her complaint, that BDMs performed the same kind of work as Account Executives, and were required to exercise the same level of skill, effort and responsibility.

37In addition, contrary to the assertion of the respondents, the complainant’s allegations in paragraphs 19 and 20 of her pleadings are, for the most part, set out in the Commission’s Case Analysis Report. For example, paragraph 11 states that the complainant indicated she was placed on a team and had the same duties as the other sales representatives. Paragraph 19 of the Report states that the complainant indicated that she maintained her title as Account Executive, her duties remained unchanged when her partner left, and she performed the same duties as the BDMs.

38As set out by the Tribunal in Toneguzzo, supra, and noted above, both the Code and the Tribunal’s Rules make it clear that the defining of the case and scope of the inquiry occurs at the point the complaint is referred to the Tribunal and during the period in which the Tribunal’s pre-hearing processes are engaged and not when a complaint is drafted. I also note the following comments of the Tribunal in Lundy v. Kaparel Corporation et al., 2007 HRTO 44, at para. 11:

Rules 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.

39In the circumstances, I have no difficulty finding that the material facts set out in paragraphs 19 and 20 of the complainant’s pleadings, concerning the relative responsibilities of the complainant and the other Account Executive on her team, form part of the continuum of facts of the complaint. These allegations are clearly within the scope of the complaint.

40The respondents also assert that the complainant has failed to plead any material facts whatsoever to support the allegation that neither she nor the other Account Executive exercised authority over the other. Contrary to the respondents’ assertion, it is my view that paragraphs 19 and 20 set out with sufficient particularity material facts upon which the Commission and the complainant intend to rely, thereby informing the respondents of the issues toward which proof must be directed.

Paragraph 21

41The respondents object to the last sentence of paragraph 21 of the complainant’s pleadings which alleges that when one sales person was transferred to the U.S. in 2002, the president at the time hired one male replacement, followed by a second when the first left, at compensation levels comparable to the BDMs. In addition to their general objections to each paragraph, referred to above, the respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation that these individuals were hired at compensation levels comparable to the BDMs.

42The Commission submits that compensation packages made available to BDMs and Account Executives are clearly relevant to the central issue of the complaint, namely salary disparities on the basis of sex. Further, documents identifying the compensation packages made available to sales personnel should be in the possession of the corporate respondents.

43As stated above, the essence of the complaint is the allegation that the complainant was subjected to discrimination on the basis of sex in employment. The complaint alleges, in particular, that the failure to provide the complainant with pay equal to that of BDMs constitutes discrimination on the basis of sex. As such, the allegations set out in paragraph 21 concering the compensation levels provided to male sales staff in the workplace form part of the continuum of facts of the complaint. As well, these allegations appear to be sufficienlty particularized.

Paragraph 24

44The respondents object to paragraph 24 of the complainant’s pleadings which alleges that the other remaining female Account Executive “was terminated after repeatedly complaining to BCI about the wage disparity between male and female sales executives.” The pleadings state further that this other female Account Executive “had also expressed her frustration at business decisions taken by senior management which favoured male sales personnel.” In addition to their submissions that no such allegations are made in the complaint, or raised in the Case Analysis Report, the respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation that this individual was terminated as a result of her complaints to Borland.

45As the Commission points out, the complaint, at paragraph o, asserts that the complainant’s “fellow Account Executive, who had similarly spoken out about the inequality of salaries between male and female sales staff, was terminated.” The Commission also points out that the Case Analysis Report, at paragraph 28, states as follows:

One female former employee also felt that she was being unfairly compensated based on her gender. She indicates that when she asked the former president for a raise after becoming aware of her colleagues’ salaries, he told her, “you don’t belong in the office, you belong at home taking care of your children” and denied her the raise. She also indicates that she told the former president that another coworker had told her that she would be denied large accounts because she was female. She indicates that her employer told her to ignore the comments and did not respond further. She believes that she was let go in part because she complained about her salary.

The Commission also confirms that this individual’s witness statement, dated June 19, 2006, was disclosed to the respondents.

46In light of the above information, set out in the complaint and the Case Analysis Report, I have no difficulty finding that the allegations in paragraph 24 of the complainant’s pleadings fall within the scope of the complaint. However, the allegations in question do not appear to be sufficiently particularized. While further information regarding these allegations may be set out in the documents referred to above, the parties nevertheless have an obligation to plead all of the material facts upon which they intend to rely and should do so comprehensively. As the Tribunal noted in Garrelhas, supra generally speaking, this should include particulars of the dates when, the places where, and the persons who engaged in the allegedly improper actions or behaviour. The Commission and the complainant are therefore ordered to provide particulars with respect to the allegations set out in paragraph 24.

Paragraph 25

47The respondents object to paragraph 25 of the complainant’s pleadings which alleges that, during her employment with Borland, the complainant was made aware of, or overheard, comments that she felt were inappropriate in the workplace. The second sentence of paragraph 25 alleges that, on one occasion, a fellow female Account Executive was told by the former president that she belonged at home raising her child. The remainder of paragraph 25 states as follows:

At a sales meeting, a male executive commented that a female colleague would be “good in bed.” On another occasion, Campe overheard male colleagues commenting on the size of their female colleagues’ breasts. Campe found these comments inappropriate and offensive. There was also a general attitude which disrespected female sales personnel and their professional abilities. When a woman performed well, she was lucky or was in the right place at the right time. When a man performed well, he was credited with his hard work paying off.

48In addition to their general objections to each paragraph, referred to above, the respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation that any such inappropriate comments were made. Elsewhere in their submissions, the respondents state that there is nothing in the complaint that indicated to them any intention on the part of the Commission or the complainant to make allegations other than those specifically made in the complaint, including allegations of sexually explicit comments by the complainant’s co-workers.

49The Commission submits that paragraph 25 alleges conversations that the complainant overheard or was made aware of. These allegations, the Commission contends, support the complainant’s position already articulated in her complaint before the Tribunal and are not new but provide further detail in support of an existing allegation of discrimination. The Commission submits that the complainant is furnishing details about comments made in the workplace and how the environment so created may have fostered the discriminatory conduct which is the subject of the complaint. The Commission also asserts that the facts alleged at paragraph 25 indicate a male-dominated work environment in which the discriminatory conduct alleged in the complaint can be understood.

50As I understand it, the Commission’s position is that the facts alleged in paragraph 25 provide a context for the allegations of discrimination that are the subject of the complaint. I also note that the allegation in the second sentence of paragraph 25 appears to be referred to in the Case Analysis Report as set out above. In any event, I am not prepared to rule on the relevance of evidence related to these matters in advance of the hearing. The allegations in paragraph 25, therefore, will not be struck as the material facts alleged may provide useful context for considering the issues in this case.

51I do find, however, that the allegations in paragraph 25 are lacking in particularity in light of the principles set out in Garrelhas, supra referred to above. The Commission and the complainant are therefore ordered to provide further particulars with respect to the allegations in paragraph 25 of the complainant’s pleadings.

Paragraph 29

52The respondents object to paragraph 29 of the complainant’s pleadings which state, in part, that “[i]n or about April, 2002, and on several occasions thereafter, Campe raised the issue of pay inequity with” Borland’s president at the time. The respondents submit, in particular, that the complainant has failed to plead any material facts whatsoever to support the allegation that the complainant raised the issue of alleged pay inequity with the former president on more than one occasion.

53The Commission submits that the complaint, at paragraph m, asserts that, in or about April 2002, the complainant met with the president and reiterated her concerns that male sales personnel were earning substantially more than female Account Executives even though they were all doing the same work. The Case Analysis Report, at paragraph 22, states that the complainant complained about pay inequity to the former president in April 2002, and that, after this occasion, she complained on six other occasions about pay inequity to the former president. The complainant’s witness statement, dated September 30, 2005, states at paragraph 16, that in April 2002 she and the former president discussed that she had a conversation with Schmiedendorf about not being paid equal to the men and they revisited the subject on several occasions. Elsewhere, in paragraph 16 of her statement, it is asserted that after the discussion in April 2002, the complainant had subsequent conversations about not being paid equally to the men.

54In my view, the allegation in paragraph 29 of the complainant’s pleadings, that the complainant raised the issue of pay inequity with Borland’s former president in or about April 2002, and on several occasions thereafter, is clearly within the scope of the complaint. However, aside from the meeting in or about April 2002, and a reference to a corridor meeting in paragraph 31 of the pleadings, there do not appear to be any particulars with respect to any other conversations. As such, the Commission and the complainant are ordered to provide further particulars with respect to the allegations in paragraph 29 of the complainant’s pleadings.

Paragraph 33(f)

55The respondents object to the last sentence of paragraph 33(f) of the complainant’s pleadings which alleges that the quota of one male BDM was reduced for 2002. The respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation that this individual’s quota was reduced in 2002.

56In paragraph n of the complaint, it is alleged that the former president indicated that he might be prepared to offer the complainant BDM-level remuneration, but only if she would accept a sales target well above that of all but one BDM. The complaint states further that, given the higher sales quota the complainant would have had to meet, the proposal would not have resulted in higher overall compensation or equality in treatment with male BDMs and that, in any event, no formal offer in that regard was ever presented to the complainant. In their response to the complaint, the respondents submit that the former president advised the complainant that if she chose to accept a higher quota, her compensation level would also increase to be within the range of other BDMs but that the complainant advised the former president that she did not want to accept the higher compensation level. In her pleadings, the complainant asserts, at paragraph 32, that at no time after April 2002 did the former president make an offer to increase her salary or commission to bring her compensation plan in line with that of male BDMs. The complainant also states that the compensation plan floated by the former president would not have resulted in equality with male BDMs. In paragraph 33 of her pleadings, the complainant asserts, among other things, that there was no justification for increasing her sales quota mid-year and that none of the men were asked to accept an increase in their sales target of one million dollars or 40 per cent. The complainant states that, in fact, one male BDM’s quota was reduced for 2001.

57The Commission submits that Table 2 of the Case Analysis Report states the respondents provided two different documents identifying two different annual quotas for 2002 for Team 1, of which the individual in question was a member. The Commission also asserts that documents setting out sales quotas for sales personnel, and changes to quotas, should be in the possession of the corporate respondents.

58In my view, the portion of paragraph 33(f) that the respondents object to forms part of the continuum of the events of the complaint. The complainant has pled this allegation in light of the issues that have arisen as part of the process contemplated by the Code, including the Commission’s investigation process, and it is also sufficiently particularized.

Paragraph 34

59The respondents object to the first sentence of paragraph 34 of the complainant’s pleadings wherein it is alleged that, “[i]n or about early May, 2002, Campe met with Schmiedendorf to seek his support for her efforts to get BCI to comply with its legal obligations to provide equal compensation for equal work.” The respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation that she met with Schmiedendorf at any time to seek his support on issues relating to pay equity.

60The Commission submits that the facts alleged at paragraph 34 are consistent with and follow from the discussion with Schmiedendorf referred to at paragraph k of the complaint. At paragraph k of the complaint, it is alleged that, on or about March 15, 2002, Schmiedendorf came to the complainant’s office to advise that her salary and commission eligibility had been increased. The complaint alleges that Schmiedendorf asked if she was satisfied with the raise and the complainant pointed out that she would still be earning substantially less than BDMs and she told Schmiedendorf that it was against the law of Ontario to pay women less than men for equal work.

61In my view, the facts alleged at paragraph 34 of the complainant’s pleadings, concerning who the complainant allegedly spoke to about her pay concerns, and when, form part of the continuum of facts of the complaint and are within the scope of the complaint. As well, the allegations are sufficiently particularized.

Paragraph 36

62The respondents object to the second sentence of paragraph 36 of the complainant’s pleadings wherein “Campe states that shortly after Corey’s hire, Campe was advised that Corey had been informed of the concerns Campe had raised regarding pay discrimination.” In addition to their submission that no such allegation is made in the complaint or raised in the Case Analysis Report, the respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation Corey was informed of her concerns regarding pay discrimination. The Commission submits, however, that paragraph 29 of the Case Analysis Report states that, “[t]he complainant indicates that the former president told her that her complaints about pay inequity were discussed with Mr. Corey, Mr. Schmiedendorf, and the VP of the Americas for Borland Software Corporation during a meeting in October 2002.”

63The allegation in question is set out in the Case Analysis Report and this allegation, concerning who was informed of the complainant’s concerns regarding pay, clearly forms part of the continuum of facts and is within the scope of the complaint. In my view, however, the Commission and the complainant should provide further particulars regarding paragraph 36 concerning who advised the complainant that Corey had been informed and any other relevant information relating to that allegation. The Commission and the complainant are ordered to do so.

Paragraph 40

64The respondents object to the first sentence of paragraph 40 of the complainant’s pleadings which alleges that, in or about January 2003, the Ottawa position was given to “a previous associate of Corey’s at Rational Software Corp., the company Corey left to join BCI.” The respondents also object to the last sentence of paragraph 40 which alleges that this individual “was hired by BCI on a BDM-level compensation plan which far exceeded the compensation plan provided to Campe.” The respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegations that the individual in question was hired as a result of his previous association with Corey and that he was hired on a compensation plan which exceeded that of the complainant.

65With respect to the allegation in the last sentence of paragraph 40, the Commission submits that the Case Analysis Report, at paragraph 20, states that the individual who took over the complainant’s accounts in Ottawa earned BDM-level compensation and, at paragraph 33, that a male sales representative took over and was paid BDM-level compensation. The Commission also submits that this individual’s witness statement, dated August 11, 2006, which was disclosed to the respondents, sets out his remuneration which the Commission asserts is BDM-level compensation.

66The allegation in question in the last sentence of paragraph 40 of the complainant’s pleadings is set out in the Case Analysis Report. In my view, the allegation clearly forms part of the continuum of facts of the complaint and is within the scope of the complaint which alleges discrimination on the basis of sex in employment, including that the failure to provide the complainant with pay equal to that of BDMs constitutes discrimination on the basis of sex.

67With respect to the allegation set out in the first sentence of paragraph 40, the potential relevance of the alleged material fact that the Ottawa position was given to a previous associate of Corey’s is not entirely clear. While it is not clear to me whether or not this alleged fact falls within the continuum of facts of the complaint, evidence relating to this allegation may provide useful context to understanding the allegations of discrimination set out in the complaint. As I am not prepared to rule on the relevance of any such evidence relating to this allegation in advance of the hearing, this sentence also will not be struck. These allegations also appear to be sufficiently particularized.

Paragraph 42, 43, 45 and 47

68The respondents object to the last sentence of paragraph 42 of the complainant’s pleadings which alleges that, shortly after the complainant’s termination, Borland hired an individual “as an AE, working full-time in the GTA.” The respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegation that this individual was hired as a full-time Account Executive in the GTA.

69The respondents also object to paragraph 43 of the complainant’s pleadings which states as follows:

43. Campe further notes that it was BCI’s practice to transfer accounts between BDMs/AEs, as needed and therefore BCI could have added to Campe’s currently existing accounts if there was a question about Campe’s ability to work out of the Markham office on a full-time basis.

70As well, the respondents object to paragraph 45 of the complainant’s pleadings, wherein it is alleged that, at the time the complainant’s employment was terminated, the majority of accounts outside the Ottawa area, previously serviced by the complainant, were re-assigned to another individual who was charged with the same responsibility and received BDM-level compensation.

71Lastly, the respondents object to paragraph 47 of the complainant’s pleadings, which state as follows:

47. Campe further disputes that there had been a restructuring undertaken by BCI which resulted in her termination. Campe relies in this regard on the fact that no BDM or AE employed by BCI other than Campe was terminated in or about January, 2003.

72The respondents submit that the complainant has failed to plead any material facts whatsoever to support the allegations that Borland had a practice of transferring accounts and/or that it could have added accounts to the complainant’s workload, that any of the complainant’s accounts were reassigned to the individual named in paragraph 45 and/or that he received BDM-level compensation, and that there was no restructuring at Borland in January 2003.

73In their response to the complaint, the respondents assert that the complainant’s employment was terminated because there was no longer a role for her within the restructured operation. They also submit that the complainant had made it clear that she was not open to relocating to Ottawa and they did not want to displace another sales person to reassign a new portfolio to the complainant.

74With respect to the last sentence of paragraph 42, the Commission submits that the terms of hire of the individual referred to therein suggest there was a need for a sales representative in the Toronto area. The Commission submits this information, considered together with the transfer of accounts belonging to Campe to other sales personnel upon her termination, casts doubt on the respondents’ defence that there were insufficient accounts in the Toronto area for Campe to service.

75With respect to paragraph 43, the Commission submits that the transfer of accounts belonging to Campe to male BDMs hired in 2002 can be confirmed by examining client lists by account executive and that this information is available to the respondents. The Commission also submits that the allegations at paragraph 43 challenge the respondents’ contention that they could not, as they had in the past, transfer accounts among sales personnel and therefore provide accounts to Campe after accounts for the Ottawa area were transferred to the individual hired for the Ottawa position.

76With respect to paragraph 45, the Commission submits that the Case Analysis Report, at paragraph 30, states that another sales representative inherited Campe’s public sector accounts in the GTA. Also, the witness statement of the individual referred to in paragraph 45, which was disclosed to the respondents, indicates in paragraph 1 that he inherited Campe’s accounts.

77In my view, the allegations in the last sentence of paragraph 42 and in paragraphs 43, 45 and 47 of the complainant’s pleadings clearly fall within the continuum of facts of the complaint and are within the scope of the complaint which alleges discrimination in employment on the basis of sex, including that her employment was terminated because she is a woman and, further, that the termination of the complainant’s employment, after her and others complained about pay policies, was a reprisal, contrary to the Code. The material facts in question set out in these paragraphs appear to be in the nature of reply allegations to the respondents’ alleged non-discriminatory reasons for terminating the complainant’s employment and, as such, assist in defining the issues in dispute among the parties. Further, as stated above, the level of compensation provided to male BDMs or Account Executives, as referred to in the last sentence of paragraph 45 of the pleadings, is clearly within the scope of the complaint and relate to the “real issues in dispute”. I also find that the allegations set out in these paragraphs are sufficiently particularized.

78Apart from the order set out above with respect to a portion of paragraph 18, I find that the paragraphs in question set out in the complainant’s pleadings, and relied on by the Commission, do not seek to expand the scope of the complaint. In addition, aside from the lack of particularity referred to above, in paragraphs 18, 24, 25, 29, and 36, the remaining pleadings do exactly what pleadings filed pursuant to the Tribunal’s Rules are supposed to do. That is, set out in detail and with sufficient particularity the material facts upon which the parties intend to rely: Toneguzzo, supra, at para. 70.

79The respondents also submit that there was significant delay in raising the allegations set out in the disputed paragraphs. I have determined, however, that the majority of the material facts alleged in the disputed paragraphs form part of the continuum of the facts of the complaint and are within the scope of the complaint, while a few material facts alleged simply provide potentially useful context. Also, these material facts have been set out appropriately at the pleadings stage as contemplated by the process established under the Code and the Tribunal’s Rules. As such, I also do not find that there was any delay on the part of the complainant or the Commission in raising any material facts in the pleadings such that would cause me to exercise my discretion to strike the pleadings in light of principles of fairness or natural justice or because of abuse of process. Finally, while the respondents assert prejudice, in the circumstances, I also do not find that the respondents have demonstrated that actual prejudice would be occasioned by permitting the allegations set out in the disputed paragraphs to remain.

ORDER

80For all of the foregoing reasons, the Tribunal makes the following Order:

a) the following portion of paragraph 18 of the complainant’s pleadings shall be struck: “stock options as signing bonuses as well as”;

b) by July 25, 2008, the Commission and the complainant shall provide further particulars with respect to paragraphs 18, 24, 25, 29, and 36 of the complainant’s pleadings;

c) by August 15, 2008, the respondents may file a response;

d) by August 22, 2008, the Commission and the complainant may file a reply, if any; and

e) a Pre-Hearing Conference Call will be scheduled for the week following the expiry of the time limit for filing any reply, and the Registrar’s Office will be in contact with the parties to set a date and time.