Frolov v. Mosregion Investment Corporation, 2009 HRTO 1447

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Frolov

Applicant

-and-

Mosregion Investment Corporation and Dina Stolyarova

Respondents

A N D B E T W E E N:

Dina Stolyarova

Applicant

-and-

Mosregion Investment Corporation, Igor Bakouchev and David Frolov

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: September 10, 2009

Citation: 2009 HRTO 1447

Indexed as: Frolov v. Mosregion Investment Corporation

Appearances by

David Frolov, Applicant/Respondent ) On his own behalf

Dina Stoylarova, Applicant/Respondent ) Grace Vaccarelli, Counsel, ) and others

Igor Bakouchev, Respondent ) On his own behalf

Mosregion Investments Corp., Respondent ) Igor Bakouchev, Representative

1The hearing into these Applications has commenced. An issue about the admissibility of various corporate documents has arisen. At the last hearing date, Mr. Bakouchev also requested that Ms. Stolyarova produce personal emails that she sent from her personal email account from May 2008 onwards. In addition, Ms. Vaccarelli seeks to enter as an exhibit a document prepared by Mr. Frolov about his travels in 2009 and requests that the Tribunal exercise its discretion to electronically record the hearing. This Interim Decision will address each of these issues.

Admissibility of Corporate Documents

2Mr. Bakouchev, on his own behalf and on behalf of the corporate respondent, objects to the admissibility of various corporate documents on the basis that Ms. Stolyarova is alleged to have stolen them from the corporate respondent and is trying to use them to make up a case against him and the company. The corporate respondent would have produced the documents in question if they were arguably relevant to the applications. Mr. Frolov echoes Mr. Bakouchev’s concerns and asserts their admission would damage the reputation of the corporate respondent and its confidential commercial dealings.

3The documents in dispute include emails that Ms. Stolyarova apparently emailed from her corporate email address to a personal email address; documents pertaining to a land appraisal and a provisional land offer; and the corporate filings. Counsel for Ms. Stolyarova submits that the documents are arguably relevant to the issue of whether the corporate respondent is jointly and severally liable for violating the Code. She points out that Mr. Bakouchev alleges that the documents were “stolen” rather than their contents being incorrect or fabricated.

4Sections 15(1) and (2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended (“the SPPA”) permit the admissibility of evidence at a hearing whether or not admissible as evidence in a court in certain circumstances. Sections 15(1) and (2) state:

(1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

(2) Nothing is admissible in evidence at a hearing,

(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or

(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

5I do understand that Mr. Bakouchev and Mr. Frolov are saying that Ms. Stolyarova has inappropriately obtained these documents, but they are not asserting that they are privileged or otherwise precluded by statute from being introduced in this proceeding. How Ms. Stolyarova obtained these documents is not for this Tribunal to determine.

6The Tribunal’s Rule 16.1 requires that parties deliver to each other a list of all documents arguably relevant to the issues in the proceeding which are in their possession. Even where privilege is claimed over a document, the party must describe the nature of the document. As such, given the potential liability issues to be decided between the respective parties, I am satisfied the documents are arguably relevant to the issues in dispute in this proceeding. Mr. Bakouchev and Mr. Frolov will have an opportunity to make submissions about the weight to be given to those documents during their final submissions. If they have concerns about disclosure of sensitive financial information or other confidentiality issues, they may consider whether to seek a Rule 3.11 order.

Ms. Stolyarova’s personal emails

7Mr. Bakouchev has filed a Request for Order During Proceedings requesting that Ms. Stolyarova produce messages, e-mails, posts and other information posted on her dating website. Mr. Frolov supports Mr. Bakouchev’s request. Ms. Stolyarova opposes it.

8Mr. Bakouchev submits that Ms. Stolyarova has made “repeated statements regarding the severity of the negative impact of Mr. Frolov’s alleged harassment”. In support of this position he cites correspondence with her counsel describing Ms. Stolyarova’s anxiety and distress. Mr. Bakouchev submits that the communications in her dating profile are inconsistent with her claim of distress and anxiety. Moveover, he submits Ms. Stolyarova has admitted to communicating her feelings on her website. This admission is denied.

9The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance of the documentation to the issues at the hearing and the party seeking production must demonstrate a nexus between the document being sought and the issues in dispute before the Tribunal: Lampi v. Princess House Products Canada Inc. 2008 HRTO 1 at para. 8.

10In reviewing the pleadings and the documents that have been filed by the parties, I do not see any admission by Ms. Stolyarova that she communicated with others on a personal email account about the impact that the alleged sexual harassment had on her. Therefore the personal emails that Mr. Bakouchev is seeking are not relevant at this point and I do not order them to be produced. Mr. Bakouchev will have the opportunity to cross-examine Ms. Stolyarova when she testifies about any impact the alleged sexual harassment had on her.

11Mr. Frolov asserts that Ms. Stolyarova sent him an email on July 4, 2008 (“the July 4 email”). Ms. Stolyarova denies sending Mr. Frolov this email. In her witness statement, as well as that of Mr. Metlitski, another identified witness, it is indicated that they will both testify that some of the content of the July 4 email was sent by Ms. Stolyarova to Mr. Metlitski in a very personal email. I note that a copy of Ms. Stolyarova’s email to Mr. Metlitski has not been produced and I order that it be produced before the next scheduled hearing date. Failure to produce this email may lead me to draw a negative inference about this point.

Exhibit re Mr. Frolov’s Business Trips between April – July 2009

12Counsel for Ms. Stolyarova requests that a document that Mr. Frolov prepared and looked at during his examination-in-chief about his business travels between April to July 2009 be entered as an exhibit. I am prepared to allow the document called “David Frolov’s business trips in April – July 2009” to be entered as an exhibit. I will allow questions, if there are any, about Mr. Frolov’s preparation of the document and his reliance upon the document at the hearing, but will not allow questions on the document’s contents.

Electronically Recording the Hearing

13Counsel for Ms. Stolyarova has requested that the Tribunal electronically record the hearing. In a previous Interim Decision, 2009 HRTO 384, I permitted Mr. Frolov to audio record, but not video record, the hearing for his own use and at his own expense. Since that Interim Decision, Mr. Frolov and Mr. Bakouchev have been audio recording the hearing, as have Ms. Stolyarova’s legal representatives.

14As I noted in that previous Interim Decision, the Tribunal does not usually record or transcribe its proceedings. This is found at Rule 3.7 which provides:

The Tribunal does not normally record or transcribe its proceedings. Where a hearing is recorded the recording does not form part of the Tribunal’s record of proceedings including any record filed in respect of an application made under the Judicial Review Procedures Act.

15The Tribunal has the ability at its hearing centre to digitally record hearings. The Tribunal will digitally record the rest of the hearing as held at its hearing centre. The Tribunal will not be providing a transcript based upon those recordings and the recordings will not form part of the Tribunal’s record. If a party requests a copy of the digital recording and intends to rely upon it, that party bears the costs of having the recordings transcribed and will be required to provide a copy of the transcripts to the other parties and to the Tribunal.

16The hearing will resume on the next scheduled hearing date.