Frolov v. Mosregion Investment Corporation, 2009 HRTO 384

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Frolov

Applicant

-and-

Mosregion Investment Corporation and Dina Stolyarova

Respondents

AND 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: April 2, 2009

Citation: 2009 HRTO 384

Indexed as: Frolov v. Mosregion Investment Corporation

APPEARANCES

David Frolov, Applicant/Respondent ) On his own behalf

Dina Stoylarova, Applicant/Respondent ) Grace Vaccerelli, Counsel

Igor Bakouchev and Mosregion Investments Corp., )

Respondents ) Igor Bakouchev,

Representative

INTRODUCTION

1The applicant David Frolov (“Mr. Frolov” or “Frolov Application”) alleges the personal respondent Dina Stolyarova (“Ms. Stolyarova”) sexually harassed him while they were employees of Mosregion Investment Corporation (“MIC”), which is named as a respondent. Mr. Frolov filed his Application on July 15, 2008.

2The applicant Dina Stolyarova filed her Application dated July 31, 2008 (“Stolyarova Application” or “Ms. Stolyarova”). She alleges that Mr. Frolov, whom she names as a personal respondent, sexually harassed her while they were employees of MIC. She also names Igor Bakouchev (“Mr. Bakouchev”), the owner of MIC, as a personal respondent and MIC as a respondent.

3These two Applications were scheduled to be heard together pursuant to an Interim Decision, 2008 HRTO 135, (“the October 2008 Interim Decision”). The October 2008 Interim Decision also ordered that following the exchange by the parties of hearing materials, the Tribunal would issue further directions to the parties on how the hearing would be conducted.

4The parties attended the hearing on February 27 and March 3, 2009. Mr. Frolov was self-represented. Mr. Bakouchev represented himself and MIC. On March 3, 2009, Mr. Frolov communicated with the Tribunal through a Russian interpreter provided by the Tribunal. Occasionally, Mr. Bakouchev also did so. Ms. Stolyarova was represented by Grace Vaccerelli, a lawyer from the Human Rights Legal Support Centre.

5I heard oral submissions from the parties on a number of procedural issues that the parties had raised with the Tribunal through filing various Requests for Orders during Proceedings and other correspondence. This Interim Decision addresses those procedural issues in the order they were filed with the Tribunal.

Replies to Ms. Stolyarova’s Application filed by Mr. Frolov, Mr. Bakouchev and MIC

6In response to Ms. Stolyarova’s Application, Mr. Frolov, Mr. Bakouchev and MIC filed Responses. Ms. Stolyarova filed a Reply. Mr. Frolov, MIC and Mr. Bakouchev filed Replies to Ms. Stolyarova’s Reply (“the respondents’ Replies”). Ms. Vaccerelli, on behalf of Ms. Stolyarova, submitted that the respondents’ Replies were improperly filed as the Tribunal’s Rules of Procedure (“Rules”) do not allow respondents to file replies.

7Ms. Vaccerelli’s position is correct. Rule 6 of the Rules addresses applications that are filed with the Tribunal. Rule 8 requires a respondent to file a Response to an Application. Rule 9 allows an applicant to file a Reply. There are no Rules that permit a respondent to file a Reply to an applicant’s Reply.

8At the hearing, Ms. Vaccerelli submitted that the information contained in the respondents’ Replies could be read into their respective Reponses. I agree with this approach. Accordingly, the information contained in the respondents’ Replies shall be considered part of their respective Responses to Ms. Stolyarova’s Application.

Striking Ms. Stolyarova’s documents and list of witnesses because they not filed within the time frames established by the Rules

9Mr. Frolov, Mr. Bakouchev and MIC submit that Ms. Stolyarova’s list of arguably relevant documents, copies of such documents, and list of potential witnesses (“Ms. Stolyarova’s materials”) were not provided to them within the time frames established by the Tribunal’s Rules. They submit that they received Ms. Stolyarova’s materials 26 days late. They submit that because Ms. Stolyarova’s materials were delivered late, they should be struck from the record and found inadmissible at the hearing.

10Mr. Frolov, Mr. Bakouchev and MIC state that the Tribunal issued a Confirmation of Hearing, dated December 18, 2008, setting a hearing date of February 23, 2009 (“the COH”). The COH set out the time frames for the disclosure of documents (as per Rule 16) and the disclosure of witnesses (Rule 17). Specifically, it stated that within 21 days from December 18, 2008 the parties were to deliver their list of arguably relevant documents and copies of such documentation as per Rule 16. The Hearing Notice also stated that 45 days before the hearing, the parties were to deliver their list of documents and copies of the documents, a Statement of Delivery and a witness list including a brief statement of the witness’ expected evidence to the other parties and the Tribunal as per Rule 17. The COH also referenced Rule 5, and the potential consequences to a party of not complying with the Rules.

11Mr. Frolov submitted that the late delivery of Ms. Stolyarova’s materials caused irreparable damage to his position, his human rights, and his ability to protect his interests before the Tribunal. He submitted that Ms. Stolyarova had the opportunity to develop and build her case while having his documents for 26 days. In response to my questions about any prejudice or harm that he may have incurred as a result of the late delivery of Ms. Stolyarova’s materials, he submitted that he was unable to prepare for the hearing without all the information. In response to my questions about the Tribunal’s ability to abridge time limits, Mr. Frolov submitted that he was disadvantaged, the process was not fair or just and was not expeditious because of a 4 day delay between the originally scheduled hearing date of February 23, 2009 and the rescheduled hearing date of February 27, 2009. Mr. Frolov also submitted that the Tribunal scheduled a mediation date of February 23, 2009 without his knowledge or consent and then cancelled that mediation date and a full investigation should be conducted into the scheduling of that mediation.

12Mr. Bakouchev submitted that his rights were violated by the late delivery of Ms. Stolyarova’s materials and that he did not have an opportunity to prepare for the hearing. He submitted that he worked towards a deadline of January 9, 2009 on the understanding that the hearing was scheduled for February 23, 2009. He submitted that he attended the Tribunal’s offices on January 7, 2009 and met with an Acting Team Leader who confirmed in writing that the hearing was still scheduled for February 23, 2009 and the deadline for the delivery of materials was January 8, 2009. Mr. Bakouchev submitted that he worked until late in the evening to comply with the January 9, 2009 deadline because he was leaving for an out of the country business trip. He left for the trip on January 15, 2009, after the deadline for the materials to be submitted had passed. He submitted that he was put in an unfair position by Ms. Stolyarova because she had an opportunity to prepare her case with his documents for 26 days and therefore improve her case. He did not have the same opportunity. He submitted that he arrived back in Canada on February 4, 2009 and found a letter from the Tribunal dated January 15, 2009 advising that a mediation scheduled for February 23, 2009 had been cancelled. He had not consented to a mediation. He also received a letter dated January 28, 2009 from the Tribunal advising that a pre-hearing case management teleconference had been held on January 27, 2009 (in his absence) and rescheduled the hearing for February 27, March 2 and 3, 2009.

13Ms. Vaccerelli submitted that following receipt of the COH, she emailed the Registrar on December 19, 2008 and requested an adjournment of the February 23, 2009 hearing. She made her request in accordance with the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments and she copied Mr. Frolov and Mr. Bakouchev on her email. When she did not receive a response from the Tribunal, she emailed another request on December 23, 2008. She received a response from the Tribunal advising that a new hearing date would be set, but she thought that the Tribunal only responded to her and not the other parties. In January 2009, having not received a rescheduled hearing date, she emailed the Tribunal again, copying the other parties and advised that in light of her previous requests for an adjournment, she would not be meeting the time frames for the disclosure of documentation and witnesses that had been set in the COH. The Tribunal responded by email to all the parties noting her position. She then received the material filed by Mr. Frolov, Mr. Bakouchev and MIC. She submitted that her actions were not done maliciously and were done with transparency. Moreover, in light of further correspondence sent to the Tribunal by Mr. Frolov and Mr. Bakouchev, a pre-hearing case conference teleconference was scheduled with the parties before Chair Gottheil. Mr. Bakouchev did not participate as Mr. Frolov reported that he was out of the country, and Mr. Frolov advised that he was not speaking on behalf of Mr. Bakouchev. During the teleconference Mr. Frolov repeated his position that Ms. Stolyarova missed the deadline for the filing of her material. During the teleconference, the hearing was rescheduled to February 27, March 2 and 3, 2009.

14In the circumstances of this case, I am not prepared to grant Mr. Frolov’s, Mr. Bakouchev’s and MIC’s requests to strike or render inadmissible Ms. Stolyarova’s material. First, from reviewing the Tribunal’s record, it is clear that Ms. Vaccerelli sent the Tribunal an email on which Mr. Frolov and Mr. Bakouchev were copied on December 19, 2008 requesting an adjournment of the hearing. While Mr. Frolov and Mr. Bakouchev have filed an objection to receiving correspondence by email (that issue is addressed further below), they were aware of the adjournment request made by Ms. Vaccerelli. Ms. Vaccerelli repeated this request in several more emails to the Tribunal, but Mr. Frolov and Mr. Bakouchev were not copied on those emails. On January 7, 2009 Ms. Vaccerelli emailed the Tribunal, copying Mr. Frolov and Mr. Bakouchev, and stated that because of the new Confirmation of Hearing that would be issued, she would not be filing her materials within the time frames set out in the original COH. Attached to Ms. Vaccerelli’s January 7, 2009 email was the history of emails to the Registrar pertaining to her adjournment requests as well as the Registrar’s responses, including a response dated December 24, 2008 from the Registrar indicating that one of the Tribunal’s Schedulers would be setting and then confirming a new hearing date.

15Based upon the email documentation, I accept that the Tribunal advised Ms. Vaccerelli that a new hearing date would be set and therefore Ms. Stolyarova’s materials were not late when they were filed past January 8, 2009. In this case the new hearing date also revised the dates for disclosure and production under Rules 16 and 17.

16Even if I am mistaken in concluding that Ms. Stolyarova’s materials were not late when they were filed after January 8, 2009, I am not prepared to grant Mr. Frolov’s and Mr. Bakouchev’s request to have Ms. Stolyarova’s materials struck or rendered inadmissible. Rules 1.7(a), 5.1 and 5.2 allow the Tribunal to lengthen, vary or waive the application of the time frames and relieve against the failure of a party to comply with the Rules.

17Rule 1.7 states:

1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

a) lengthen or shorten any time limit in these Rules.

18Rules 5.1 and 5.2 state:

5.1 A technical defect or irregularity is not a breach of these Rules. Where a party or other person fails to comply with these Rules, the Tribunal may relieve against the failure to comply, with or without terms, as the Tribunal considers appropriate in accordance with Rules 1.1.

5.2 The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.

19If Ms. Stolyarova’s materials were delivered late, I am prepared, in light of the discretion given to me under the Rules, to waive the strict application of the time limits for the delivery of those materials in these circumstances. There is no prejudice to Mr. Frolov or Mr. Bakouchev in allowing the materials to be relied upon by Ms. Stolyarova, and certainly no prejudice that could not addressed by providing additional time to prepare for the merits of the hearings. In that regard, I note that I issued a Case Management Direction dated February 26, 2009, stating that the February 27, 2009 hearing date would be used as a case management day to address the various outstanding procedural issues between the parties. As it turned out, those issues were addressed on February 27 and March 3, 2009. At the hearing, new hearing dates were set for April (which dates are now subject to a March 31, 2009 adjournment request, which is addressed later in this Interim decision). Therefore, Mr. Frolov and Mr. Bakouchev will have had more than 2 months to prepare for the hearing following receipt of Ms. Stolyarova’s materials.

Communicating with Mr. Frolov, Mr. Bakouchev and MIC by email

20Mr. Frolov, Mr. Bakouchev and MIC object to counsel for Ms. Stolyarova communicating with them by email. Mr. Frolov submits that he has not consented to delivery by email and that such delivery by email is in violation of the Rules. He also submits that Ms. Vaccerelli has not provided him with Statements of Delivery, Form 23, which confirm documents that have been delivered to another party. Mr. Frolov insists that any documentation sent to him by Ms. Vaccerelli, Ms. Stolyarova, or the Tribunal be sent by registered mail or by courier.

21Mr. Bakouchev and MIC submit that communications from Ms. Stolyarova’s counsel by email contravened the Rules and that their rights have been breached. They submit they have not been copied on all email communications between Ms. Stolyarova’s counsel and the Tribunal, and request hard copies of such communications. Mr. Bakouchev and MIC also insist that any documentation sent to them by Ms. Stolyarova, Ms. Vaccerelli, or the Tribunal be sent by registered mail, courier or hand delivery.

22Ms. Vaccarelli submitted that on the Frolov Application, Mr. Frolov and MIC, in response to the question on the Application form, “What is the best way to send information to you?” marked off “email” and thus consented to the delivery of documents by email. Ms. Vaccarelli advised that during the January 2009 teleconference Mr. Frolov withdrew his consent to have documentation delivered by email. Since then, Ms. Vaccarelli has served Mr. Frolov, Mr. Bakouchev and MIC by courier, except the day before the hearing was scheduled to commence when material was delivered by email to ensure they received it prior to the start of the hearing. Having noted Mr. Frolov’s, Mr. Bakouchev’s and MIC’s objections to receiving material by email, Ms. Vaccarelli committed to serving material in a way provided by the Tribunal’s Rules, and not by email.

23Rule 1.21 provides:

Documents must be delivered in one of the following ways:

a) hand delivery;

b) regular, registered or certified mail;

c) courier;

d) fax, but only if the document is less than (twenty) 20 pages in length or, if longer, with consent;

e) email where the person or parties receiving the document has consented to email delivery; or

f) any other way agreed upon by the parties or directed by the Tribunal.

24Further to Rule 1.21, the delivery of documents by email and faxes 20 pages or longer require the consent of the party receiving the material. While I note with some surprise that Mr. Frolov and Mr. Bakouchev themselves communicate with the Tribunal and Ms. Vaccerelli by email, Mr. Frolov, Mr. Bakouchev and MIC have clearly articulated that they do not consent to delivery of materials by emails, and therefore cannot be served that way. They submit that communications to them should be delivered registered mail or by courier. However, Rule 1.21 allows for more methods of delivery, without the consent of a party, beyond registered mail or courier. Rule 1.21 allows for delivery by hand delivery, regular, registered or certified mail, or by courier. Accordingly, the Tribunal orders that documents and other communications delivered to another party or the Tribunal shall be in compliance with Rule 1.21. Except where consent has been provided, the parties shall deliver material by hand delivery, regular, registered or certified mail, or by courier.

25The parties are further reminded of Rule 1.23 which requires that a Statement of Delivery in Form 23 also needs to be filed with the Tribunal. While a Statement of Delivery in Form 23 does not need to be delivered to another party, in this case I find it appropriate to order that the Statement of Delivery in Form 23 also be provided to the other parties by the party filing the document with the Tribunal outside of the hearing itself. This way there can be no confusion between the parties as to what documentation has been filed with the Tribunal.

Ms. Stolyarova’s Request for an Electronic Copy of a July 4, 2008 email entitled “offer” allegedly sent by her to Mr. Frolov

26Ms. Stolyarova requests production of an electronic copy of an email she allegedly sent to Mr. Frolov on July 4, 2008 entitled “offer” (the “July 4, 2008 email”). The email was allegedly sent by Ms. Stolyarova from a personal email account to Mr. Frolov at his personal email account and copied to his work email address. Mr. Frolov, Mr. Bakouchev and MIC provided a hard copy of this email in productions of their arguably relevant documents. Ms. Stolyarova denies sending the email and seeks production of the email in electronic form, to have a computer forensic audit conducted on it to prove, from the electronic data information contained in the email that is not visible in the hard copy, that she did not create and/or send this email. Ms. Stolyarova relies upon Rules 1.7(i) and (p) as well as s. 43(3) of the Code for production of the email in electronic format.

27Mr. Frolov advises that after receiving the July 4, 2008 email, he forwarded a copy of it to Mr. Bakouchev at his work email address. Mr. Frolov advised that he is looking for the email on his computer system but as of the date of the hearing had been unable to locate it. Mr. Frolov advised that the small picture alleged to be of Ms. Stolyarova located at the end of the July 4, 2008 email, that was reprinted in January 2009 and also submitted with his arguably relevant documents, is still on his computer. He advised this is because the picture is in .jpg format, which the computer saves differently from email messages.

28Mr. Bakouchev submitted that the July 4, 2008 email was sent to Mr. Frolov and not to him. Mr. Bakouchev confirmed that Mr. Frolov forwarded him the July 4, 2008 email, along with other information pertaining to Mr. Frolov’s request for investigation into his allegations about Ms. Stolyarova, and these were stored on a computer in the office which broke in October 2008. As of the hearing date, the computer was still not operational. Mr. Bakouchev submitted that MIC does not have access to Mr. Frolov’s personal email account and that normally MIC does not access the emails of its employees, including Mr. Frolov. In response to a question from me, Mr. Bakouchev thought that he, as owner of the business, could get access to Mr. Frolov’s work email account.

29Rules 1.7(i) and (p) of the Rules permit the Tribunal, in order to provide for the fair, just and expeditious resolution of any matter before it, to:

(i) make or cause to be made an examination of records or other inquiries, as it considers necessary;

(p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

30Section 43(3) of the Code provides:

(3)Without limiting the generality of subsection (1), the Tribunal may,

(f) authorize the Tribunal to require a party to a proceeding or another person to;

(i) produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form.

31In these circumstances, I find it appropriate to allow Ms. Stolyarova’s request. I order that Mr. Frolov make best efforts to search his personal email account for the July 4, 2008 email and to do so within seven (7) days of the date of this Interim Decision. I also order Mr. Bakouchev and MIC to make best efforts to search Mr. Frolov’s work email address for the July 4, 2008 email on both Mr. Frolov’s work computer and the computer to which Mr. Frolov forwarded the July 4, 2008 email to Mr. Bakouchev and to do so within seven (7) days of the date of this Interim Decision. If Mr. Frolov, Mr. Bakouchev and/or MIC locates the July 4, 2008 email they are directed to provide Ms. Vaccerelli with an electronic copy of the email. Further, any report issued to Ms. Vaccerelli as a result of a computer forensic audit being conducted on the July 4, 2008 email and upon which Ms. Stolyarova will be relying at this hearing shall be provided to Mr. Frolov and Mr. Bakouchev within seven (7) days of Ms. Vaccerelli’s receipt of such report.

Ms. Stolyarova’s request for Mr. Frolov and MIC to produce their banking records for May 2, 2008

32Ms. Vaccerelli submits that that on May 2, 2008, Ms. Stolyarova purchased an electronic airplane ticket in the amount of $644 for a return flight from Toronto to Victoria. Ms. Stolyarova travelled to Victoria in May 2008 and alleges it was for work-related reasons at the request of Mr. Frolov and/or MIC. Mr. Frolov, Mr. Bakouchev and MIC deny her trip was for work-related reasons, and submit, instead, that it was a vacation. Ms. Stolyarova produced a copy of her bank statement for May 2, 2008 which shows an online banking “third party deposit (6556)” of $644 into her banking account on May 2, 2008 and claims that it was Mr. Frolov or MIC who deposited this amount into her banking account. Ms. Vaccerelli requests that Mr. Frolov and MIC produce their banking records for May 2, 2008 and submits that the Rules should be interpreted liberally to allow for production of this information. Ms. Vaccereli confirmed that she has not subpoenaed the banking information from the bank, but agreed that she could do that. Ms. Vaccerelli reserved her rights to make submissions before the Tribunal to obtain an order from the bank to produce this information if the bank did not provide it willingly.

33Mr. Frolov submitted that he had no objection to Ms. Stoloyarova subpoenaing this information directly from the bank. MIC, through Mr. Bakouchev, has no objection to producing the bank statement to Ms. Vaccerelli upon written direction to do so.

34As Ms. Vaccerelli has indicated that she is prepared to contact the bank to obtain information about the third party who deposited $644 into Ms. Stolyarova’s account on May 2, 2008, I need not determine this issue at this time. If the bank does not provide this information upon Ms. Stolyarova’s request or in response to being served a subpoena duces tecum, Ms. Vaccerelli can make further submissions with respect to this issue.

Ms. Stolyarova’s request to strike portions of Mr. Frolov’s, Mr. Bakouchev’s and MIC’s pleadings

35Ms. Vaccerelli filed a Request for Order During Proceedings dated February 17, 2009 in which she requested, among other issues, an Order striking specific portions of the pleadings of Mr. Frolov, Mr. Bakouchev and MIC on the basis that those portions set out character or opinion evidence which is not admissible evidence. Ms. Vaccerelli also filed caselaw in support of her Request for Order During Proceedings. At the hearing, Ms. Vaccerelli asked that the Tribunal defer hearing and determining the admissibility of the objected evidence until such point in time as the evidence is tendered by a party. Mr. Frolov and Mr. Bakouchev did not object to this approach.

36Rule 1.7(n) allows the Tribunal to limit the evidence or submissions on any issue in providing for the fair, just and expeditious resolution of any matter before it. I will hear any objections on the admissibility of the evidence that Ms. Vaccerelli has identified in her February 17, 2009 Request for Order During Proceedings at such time as it becomes apparent that this evidence will be tendered through a witness.

Ms. Stolyarova’s request to amend her Application to include “sexual solicitation”

37On her Application form, Ms. Stolyarova marked off “Sex including Sexual Harassment, Pregnancy and Gender Identity” and “Reprisal or Threat of Reprisal” as grounds upon which she claims discrimination or harassment occurred. Ms. Stolyarova seeks to amend her pleadings to include “Sexual Solicitation or Advances” as another ground. Ms. Vaccerelli submitted that this ground was not marked off due to inadvertence and submitted Ms. Stolyarova was not seeking to file any additional pleadings in support of this new ground, if she was permitted to amend her pleadings.

38Mr. Frolov, Mr. Bakouchev and MIC object to Ms. Stolyarova amending her pleadings to include the ground of sexual solicitation. They submit that this is an attempt to prolong the proceedings and that they did not respond to this ground in their pleadings, production of arguably relevant documents or list of witnesses.

39Rule 1.7(c) provides:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(c) allow any filing to be amended

40In this case, Ms. Stolyarova is seeking to add another Code ground to her Application, but is not seeking to add any new facts in support of that ground. Under Rule 1.7(c), the Tribunal has the discretion to allow any filing to be amended. In this case, given the similarity of the ground “Sexual Solicitation or Advances” and “Sex Including Sexual Harassment, Pregnancy and Gender Identity”, and in the absence of new facts, I will permit Ms. Stolyarova to amend her Application to include “Sexual Solicitation or Advances” as another ground upon which she bases her Application. Mr. Frolov, Mr. Bakouchev, and MIC are permitted to amend their respective Responses to the Stolyarova Application to address this new grounds and to file any additional arguably relevant documents and additional list of witnesses pertaining to this new ground. They have seven (7) days from the date of this Interim Decision to deliver their amendments and file any additional documents.

Ms. Stolyarova’s request for a copy of MIC’s response to the Frolov Application

41Ms. Stolyarova requests a copy of MIC’s response to the Frolov Application. Ms. Vaccerelli submitted that the two Applications are joined together because of the October 2008 Interim Decision. Ms. Vaccerelli submitted that she will be arguing that Mr. Frolov and MIC are acting in concert in response to Ms. Stolyarova’s Application and to have transparency in the proceeding she requires a copy of MIC’s response to the Frolov Application.

42Mr. Frolov submitted that disclosure of MIC’s Response to the Frolov Application was up to Mr. Bakouchev and not him because it was not his Response. Mr. Bakouchev did not object to Ms. Stolyarova’s request and submitted that if the Tribunal ordered him to produce a copy of MIC’s Response in the Frolov Application to Ms. Vaccerelli, then he would comply.

43Vice-chair Whist determined that it was appropriate for the Frolov Application and the Stolyarova Application to be heard together. The effect of the October 2008 Interim Decision is that evidence tendered by a party will form the basis of either their respective Application, Response to an Application or Reply to an Application and it will not be possible to clearly separate out the evidence in support of or in response to an Application or Response. Therefore, I request the Registrar to provide Ms. Stolyarova through Ms. Vaccerelli with a copy of MIC’s Response to the Frolov Application.

Mr. Frolov contacting Peter Baskovits

44Ms. Vaccerelli objects to the fact that Mr. Frolov has contacted a potential witness, Peter Baskovits, and requested that Mr. Baskovits testify in these proceedings. Mr. Baskovits is Ms. Stolyarova’s husband and he and Ms. Stolyarova are in the process of divorcing. Ms. Vaccerelli submitted that while Mr. Frolov had identified Mr. Baskovits on his witness list and set out a will say of Mr. Baskovits’ anticipated evidence, this was done before Mr. Frolov had contacted Mr. Baskovits. Ms. Vaccerelli submitted that Mr. Frolov met with Mr. Baskovits in February 2009 and provided him with various material, including material pertaining to these proceedings. By doing so, Ms. Vaccerelli submitted he interfered in Ms. Stolyarova’s personal life. Ms. Vaccerelli filed a Request for Order During Proceedings objecting to Mr. Frolov contacting Mr. Baskovits, and requesting that Mr. Frolov cease and desist from doing so. She submitted that Mr. Frolov subsequently tried to subpoena Mr. Baskovits. Ms. Vaccerelli submitted that Mr. Baskovits should not have to testify during this proceeding because he, as a spouse, is not a compellable witness pursuant to the Evidence Act, R.S.O. 1990, c. E.23, as amended. She also submitted that Mr. Frolov’s attempts to involve Mr. Baskovits in these proceedings is an attempt to intimidate Ms. Stolyarova, draw her personal life into these proceedings, and amounts to an abuse of process. Further, Ms. Vaccerelli submitted that Mr. Baskovits does not want to participate in these proceedings, referencing an email he submitted to the Tribunal’s Registrar dated February 26, 2009. Ms. Vaccerelli submitted that Mr. Frolov should be prohibited from contacting Mr. Baskovits or any other witness whom he does not know personally and requested the Tribunal issue an Order to this effect.

45Mr. Frolov agreed that a spouse is not a compellable witness if he does not want to testify, but submitted that Mr. Baskovits may want to testify in these proceedings. He submitted that he listed Mr. Baskovits as a potential witness on the list of potential witnesses he delivered to Ms. Vaccerelli and the Tribunal in January 2009, well before Ms. Stolyarova’s list of witnesses was filed. He noted that the reason on Ms. Stolyarova’s Request for Order During Proceedings dated February 17, 2009 objecting to Mr. Baskovits being identified as one of Mr. Frolov’s witnesses was that Mr. Frolov had not yet contacted him prior to being identified as a potential witness. Mr. Frolov submitted that it was obvious that he was going to contact Mr. Baskovits, who, as the husband of Ms. Stolyarova heard or should have heard complaints about sexual harassment taking place in the workplace.

46Mr. Bakouchev submitted that Mr. Baskovits would be a good witness as he would have knowledge of Ms. Stolyarova’s alleged troubles at work. He too named Mr. Baskovits as a potential witness.

47In light of my ruling on the order of evidence in this proceeding set out below, I will not decide this issue at this time. While I understand the submissions made by Ms. Vaccerelli, including her reference to the Evidence Act, and the non-compellability of spouses to testify against each other, there is no property in witnesses and I do not read Mr. Baskovits’ February 26, 2009 email to the Registrar as stating that he will not testify. Instead, Mr. Baskovits states that he was given a subpoena, without conduct money, on February 26, 2009, the day before the hearing was scheduled to commence and that he was unavailable on February 26. He also writes that he does “not feel that [he] can be a useful witness for any of the parties involved”, and did not know why Mr. Frolov wanted to subpoena him. As I read the email, Mr. Baskovits was seeking an explanation as to why he would be needed to testify. If a party wants to have Mr. Baskovits testify later in the proceedings, I will hear further submissions on that point, including submissions regarding spousal privilege.

Applicants amending their pleadings to increase the amount of general damages being claimed

48Ms. Vaccerelli submitted that she was putting the other parties on notice that Ms. Stolyarova would be seeking an increase in the amount of monetary compensation that she was claiming to $75,000.00. Ms. Vaccerelli submitted the basis for the increased amount was that a number of reprisals had allegedly taken place since the filing of Ms. Stolyarova’s Application. She submitted that she did not need the consent of the other parties or the Tribunal to increase this amount as it was part of the remedies being sought rather than facts set out in the pleadings.

49Mr. Frolov did not object to the increase. He submitted that he would also be increasing the amount of monetary compensation claimed to $95,000.00 because of various factors that had occurred since the filing of his Application.

50As set out in paragraph 39, Rule 1.7(c), the Tribunal has the discretion to allow any filing to be amended. Accordingly, Ms. Stolyarova’s Application is amended to allow a claim for monetary compensation in the amount of $75,000 and Mr. Frolov’s Application is amended to allow a claim for monetary compensation in the amount of $95,000.

Order of Proceedings

51Mr. Frolov submitted that he should proceed first with his evidence because he filed his Application first. Neither Ms. Stolyarova nor Mr. Bakouchev objected to Mr. Frolov’s submission on this issue.

52Rule 1.7(j) provides that the Tribunal may:

(j) determine and direct the order in which the evidence will be presented.

53There are two Applications proceeding together during this hearing with both applicants being respondents to the other’s Application. As a result of the very personal allegations made by the applicants against each other, it makes sense that one of the two applicants proceed first with their evidence. Therefore, I order that Mr. Frolov proceed first with his evidence. Further, pursuant to Rule 1.7(p), I order that Ms. Stolyarova testify after Mr. Frolov’s evidence, followed by Mr. Bakouchev. Mr. Frolov and Ms. Stolyarova will have the opportunity to present reply evidence, if any, after Mr. Bakouchev testifies, with Ms. Stolyarova’s reply evidence being tendered first, followed by Mr. Frolov’s reply evidence. I will consider what other witnesses, and the order of those witnesses, to later in the proceedings, following submissions from the parties.

Mr. Frolov’s request to subpoena Rogers for his text messages

54Mr. Frolov submits that he is having difficulty obtaining his text messages from his cellular phone carrier, Rogers. He submitted that he requested a subpoena (Form 24 Summons to Witness) from the Tribunal for Rogers but as of the hearing date had not yet received that subpoena. Mr. Bakouchev made no submissions about the Rogers summons and Ms. Vaccerelli did not object to the Rogers summons.

55Mr. Frolov can obtain a signed summons to witness from the Tribunal to complete and serve it on Rogers. The parties are reminded of Rules 3.1 and 3.2 which provide:

3.1 On the request of a party, the Tribunal will provide a summons to witness in blank form and the party may complete the summons and insert the name of the witness.

3.2 Delivery of a summons to a witness is the responsibility of the party who obtained the summons.

56The instructions contained on the summons provide, amongst other requirements, that the person being summonsed is entitled to be paid for their time and travel as set out in Tariff A of the Rules of Civil Procedure. The summons also directs the parties to Rule 53.04 of the Rules of Civil Procedure which provides in part that summons must be served on the witness personally and, at the same time, payment for their time and travel (attendance money) calculated in accordance with Tariff A must be paid or tendered to the witness at the time they are served.

57Tariff A of the Rules of Civil Procedure provides for a schedule of witness fees as follows:

21 Attendance money actually paid to a witness who is entitled to attendance money, to be calculated as follows:

1. Attendance allowance for each day of necessary attendance: $50

2. Travel allowance, where the hearing or examination is held,

(a) in a city or town in which the witness resides, $3.00 for each day of necessary attendance;

(b) within 300 kilometres of where the witness resides, 24¢ a kilometre each way between his or her residence and the place of hearing or examination;

(c) more than 300 kilometres from where the witness resides, the minimum return air fare plus 24¢ a kilometre each way from his or her residence to the airport and from the airport to the place of hearing or examination.

3. Overnight accommodation and meal allowance, where the witness resides elsewhere than the place of hearing or examination and is required to remain overnight, for each overnight stay: $75

58The parties will ensure that the summons(es) for their witnesses will be served personally on each proposed witness and that each proposed witness is provided with the appropriate payment for their time and travel calculated in accordance with the information in paragraph 57.

Mr. Frolov’s request to videotape and audio record the hearing

59On the first day of the hearing and for the first time, Mr. Frolov requested that the hearing be videotaped and audio recorded. He submitted that the recordings would be at his own expense. Initially he submitted that the witnesses would be videotaped, as well as the parties during the hearing, but later submitted that at least the witness testifying should be videotaped. He submitted that the proceedings should be recorded so he could analyze the statements and because his English is not his first language. Mr. Bakouchev agreed with Mr. Frolov’s submissions on recording the proceedings.

60Ms. Vaccerelli submitted that the Tribunal did not have jurisdiction to allow a hearing to be video recorded. She submitted that the Tribunal has the jurisdiction to allow audio recordings and submitted that, if permitted, Mr. Frolov could hire a court reporter or other impartial person to transcribe the proceedings, with a copy to all parties. She objected to the proceedings being tape recorded.

61Rule 3.7 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.

62I deny Mr. Frolov’s request to videotape the witnesses or any part of these proceedings. Mr. Frolov is permitted to audio tape the hearing for his own benefit and at his own expense, and provided the recording does not disrupt the proceedings. He is not required to have the audio tape transcribed and is not required to provide a copy of the tape recording to the other parties or the Tribunal unless he intends to rely on it as evidence. He is reminded that based upon Rule 3.7, as set out above, his recordings do not form part of the Tribunal’s record of proceedings. If his recording of the hearing becomes disruptive, the decision to permit him to record the proceedings will be revisited.

Mr. Bakouchev’s request to have all evidence related to British Columbia struck because, he alleges, it was a personal vacation and not work related

63In both Applications, the applicants reference a trip to Victoria, British Columbia that Mr. Frolov and Ms. Stolyarova took in May 2008. Both applicants allege that sexual harassment by the other applicant took place in Victoria. To be clear, Mr. Frolov pleads in his Application that they did not take a trip together. Instead, he alleges that he took a vacation to Victoria and, to his complete surprise, was followed there by Ms. Stolyarova. Ms. Stolyarova pleads in her Application that Mr. Frolov, as her supervisor, required her to travel to Victoria for work-related reasons, the trip was paid for by either Mr. Frolov or MIC and she was paid her wages by MIC.

64Mr. Bakouchev submits that any evidence (and therefore by extension any pleadings) pertaining to Mr. Frolov and/or Ms. Stolyarova’s trip to Victoria should be struck, or rendered inadmissible, because it was not work-related. Mr. Bakouchev submits that it was a personal vacation by the two applicants, was not paid for or sponsored by MIC or himself, was not work related, and took place outside of Ontario. He submits that the Tribunal only has jurisdiction over events that take place in Ontario and if the applicants felt that their human rights were violated in British Columbia, they have the option of filing a human rights complaint with the British Columbia Human Rights Tribunal.

65Ms. Vaccerelli submitted that the Tribunal does have jurisdiction to deal with issues in British Columbia arising out of an employment relationship in Ontario. Ms. Vaccerelli submitted that the trip was work related, not a personal vacation, that Ms. Stolyarova conducted work in Victoria during working hours, was required to travel to Victoria by Mr. Frolov and/or MIC, had her travel expenses paid for by either Mr. Frolov or MIC, that Mr. Frolov is a directing mind of the company and as a directing mind his actions would legally bind the company. Ms. Vaccerelli submitted that it was premature to strike evidence about Victoria as a preliminary issue.

66Mr. Frolov submitted that evidence about the Victoria trip should be admissible and submitted that Ms. Stolyarova could not have attended Victoria without Mr. Bakouchev’s permission and that she had many vacations in a short period of time without any repercussions from Mr. Bakouchev.

67I find that it would be premature to make a finding on whether the trip was for personal or business reasons in the absence of testimony and in the absence of submissions on this point. Therefore, the evidence about the Victoria trip will be admitted. I also find that it is premature to make a finding on whether MIC and/or Mr. Bakouchev would be liable for harassment that took place outside of Ontario in the absence of evidence and submissions on that point. Mr. Bakouchev can make final submissions as to whether this trip was for personal or business reasons. He can also make submissions on the Tribunal’s jurisdiction to find a company liable for harassment that takes place outside of Ontario, if there is a finding that harassment took place in Victoria.

Mr. Bakouchev’s March 2, 2009 Request for Order during Proceedings about the Tribunal

68Mr. Bakouchev filed a Request for Order during Proceedings dated March 2, 2009 in which he made a number of allegations against the Tribunal. He included some of those allegations in his February 27, 2009 Request for Order During Proceedings. These allegations have been filed as a complaint against the Tribunal and will be considered in the normal course following the Tribunal’s practice of addressing such complaints.

Mr. Frolov’s request to have his Application proceed separately from Ms. Stolyarova’s Application

69At the hearing, Mr. Frolov requested that his Application be heard separately from Ms. Stolyarova’s Application. Mr. Frolov stated that he felt uncomfortable being in the same hearing room as Ms. Stolyarova and expressed the opinion that by doing so it was a continuation of her harassment against him. He also submitted that by hearing one Application first, the second Application would become redundant.

70Ms. Vaccarelli reminded the Tribunal that Vice-chair Whist had already issued the October 2008 Interim Decision deciding that the two Applications be heard together. Ms. Vaccerelli advised that Ms. Stolyarova, as a respondent to Mr. Frolov’s Application, was entitled to be present during the hearing of Mr. Frolov’s Application as well as her own Application. Ms. Vaccerelli submitted that if Mr. Frolov’s request were granted, he and Ms. Stolyarova would be present during two hearings – once where he was an applicant and she was a respondent, and once where she was an applicant and he was a respondent and this would add to his feelings of humiliation. She submitted that the facts in dispute between the two Applications are the same, involve the same parties, the same time period and the evidence will be the same. It is more expeditious, in her opinion, to having the two Applications proceed together.

71Mr. Bakochev submitted that it would take less time to consider the two Applications separately than hearing them together. He submitted that hearing the Applications together complicated the issues and wasted time.

72Rule 1.7(d) allows for the Tribunal to consolidate or hear Applications together. It states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

d) consolidate or hear Applications together.

73Vice-chair Whist issued the October 2008 Interim Decision in which he decided the two Applications should be heard together. Based upon the pleadings filed, he found that there was significant overlap in facts and issues between the two Applications. He noted that while the Applications clearly presented divergent accounts of events, both Applications centred on the relationship between Mr. Frolov and Ms. Stolyarova while they worked at MIC between September 2006 and July 2008. Both Applications, he noted, referred to a large number of the same incidents during this period of time and both referred to the conduct of Mr. Bakouchev in response to what was alleged to have occurred between Mr. Frolov and Ms. Stolyarova during this time. Vice-chair Whist determined the most expeditious, fair and just way to proceed would be to hear the two Applications together. I find no reason to change the October 2008 Interim Decision and the two Applications will continue to be heard together.

Mr. Bakouchev’s Request to adjourn the April hearing dates

74Mr. Bakouchev emailed the Tribunal’s Registrar on March 31, 2009 to request an adjournment of the April hearing dates because Mr. Frolov would be out of the country on a business trip. Mr. Bakouchev submitted that he advised the parties of this possibility at the March 3, 2009 hearing. He provided alternate hearing dates. As of the date of this Interim Decision, Mr. Frolov and Ms. Stolyarova (through Ms. Vaccerelli) have not responded to this adjournment request.

75I do want to remind the parties that at the March 3, 2009 hearing, Mr. Bakouchev and Mr. Frolov did raise the possibility that either of them may be required to attend a business trip out of the country which would impact on any hearing dates that were set. If the parties are unable to agree with Mr. Bakouchev’s adjournment request, I’ll determine whether or not an adjournment will be granted.

ORDER

76Based upon the above, I have determined:

a) the information contained in the respondents’ Replies shall be considered part of their respective Responses to Ms. Stolyarova’s Application;

b) Ms. Stolyarova’s documents and list of witnesses is not filed in an untimely manner; alternatively, if they were filed late, I waive the strict application of the time limits for the delivery of materials to allow for Ms. Stolyarova to file her documents and list of witnesses;

c) Communications with Mr. Frolov and Mr. Bakouchev will not be in a manner provided under Rule 1.21, except for email;

d) Mr. Frolov and Mr. Bakouchev are required to make best efforts to search for and then provide Ms. Vaccerelli with an electronic copy of the July 4, 2008 email that was allegedly sent by Ms. Stolyarova to Mr. Frolov at his personal email account and his work email address;

e) If she wishes to obtain such information, Ms. Stolyarova is required to subpoena information from the Royal Bank about the May 2, 2008 third party deposit into Ms. Stolyarova’s banking account in the amount of $644;

f) Ms. Stolyarova’s request to strike portions of Mr. Frolov’s, Mr. Bakouchev’s and MIC’s pleadings shall be determined later in the proceedings;

g) Ms. Stolyarova is permitted to amend her Application to include “sexual solicitation”; Mr. Frolov, Mr. Bakouchev and MIC have seven (7) days from the date of this Interim Decision to deliver any amendments to their pleadings and file any additional documents addressing this specific amendment;

h) The Tribunal will provide Ms. Stolyarova, through her Counsel, Ms. Vaccarelli with a copy of MIC’s response in the Frolov application;

i) The issue of Mr. Peter Baskovits testifying in this hearing shall be determined later;

j) Mr. Frolov’s Application is amended to claim the amount of $95,000; Ms. Stolyarova’s Application is amended to claim in the amount of $75,000;

k) Mr. Frolov will testify first, followed by Ms. Stolyarova and then Mr. Bakouchev; Ms. Stolvarova’s reply evidence, if any, shall be tendered first, followed by Mr. Frolov’s reply evidence, if any; further witnesses, and the order of those witnesses, will be addressed later in the hearing;

l) Mr. Frolov can subpoena Rogers for copies of the text messages from his cellular telephone;

m) Mr. Frolov is permitted to audio record the hearing for his own use and at his own expense;

n) The evidence about the Victoria, British Columbia trip is admissible and the parties can make final submissions about whether it was a personal or business trip and the legal affect, if any, on any party;

o) Mr. Bakouchev’s March 2, 2009 Request for Order during Proceedings is a complaint filed with the Tribunal and subject to the Tribunal’s practice of addressing such complaints ; and

p) Mr. Frolov’s request to have his Application proceed separately from Ms. Stolyarova’s Application is denied.