Garry Latanville v. Gilbert Steel Limited and Gary Gilbert, 2009 HRTO 525

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garry Latanville Applicant

-and-

Gilbert Steel Limited and Gary Gilbert Respondents

INTERIM DECISION

Adjudicator: Jim Dimovski Date: April 29, 2009 Citation: 2009 HRTO 525 Indexed as: Latanville v. Gilbert Steel

APPEARANCES BY

Garry Latanville, Applicant | Cecil Norman, Representative Gilbert Steel Limited, Gary Gilbert, Respondents | Daniel R. McDonald, Counsel

1This is an Application filed September 18, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant alleges that he was treated differently in the course of his employment and eventually terminated from his employment on the basis of his family status and disability.

3The Case Resolution Conference ("CRC") was scheduled for hearing in Toronto on March 11 and 12, 2009.

4After numerous requests from respondents' counsel to either adjourn or dismiss this Application due to the applicant's failure to follow the Tribunal's disclosure obligations, a Case Assessment Direction was issued on March 2, 2009. That decision set aside the March 11, 2009 CRC date, for the discussion of preliminary matters.

5On March 11, 2009, the respondents appeared and repeated their numerous prior requests for an adjournment and further particulars despite the applicant's disclosure shortly prior to this hearing. The adjournment was denied after the applicant confirmed that he intended to rely only on the documents he had produced.

6On March 12, 2009, after opening submissions, a very brief examination-in-chief and lengthy cross-examination of the applicant, respondents' counsel sought immediate dismissal of this Application on grounds which are enumerated below. He also sought to remove the personal respondent, Gary Gilbert, as a party to the proceeding. After considering the parties' submissions, I dismissed the respondents' motions for the following reasons.

The Motion to Dismiss

7After hearing the applicant's testimony and confirming that he did not intend to submit further evidence, the respondents argued that the applicant had failed to meet his evidentiary burden of establishing a prima face case of discrimination. Respondents' counsel submitted that the applicant's testimony lacked any credibility and thus justified the dismissal of this Application. Specifically, the respondents argued the applicant's testimony and the video surveillance of him between May 4, 2006 and May 12, 2006, while he was off work due to his claimed disability contradicted many of his allegations and thus impugned his credibility. Counsel argued that a prima facie assessment is a question of mixed fact and law. Relying on Faryna v. Chorny 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152, he submitted the applicant's story was not in 'harmony' with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place in those circumstances.

8In my view, the applicant has established a prima facie evidentiary basis to support he has a disability. I am satisfied that there are sufficient facts alleged on the face of the Application and in the applicant's testimony to establish prima facie, irrespective of any findings regarding his credibility, that the applicant has characteristics associated with a disability, a prohibited ground under the Code. This finding is based on the medical report dated May 4, 2006 prepared by Dr. Barbara Corbett which confirms the applicant had "severe cellulitis" and required time off work in May 2006.

9With respect to the submissions about the videotape evidence, I am not satisfied the difference between the applicant's testimony before me and his prior statements regarding his functional limitations during May 2006 are particularly significant to refuting the applicant's disability or claim he was not allowed to follow his physician's advice to stay off work during the relevant time. Mr. McDonald did not establish that Dr. Corbett's report was false or that the applicant, irrespective of his claims about his functional limitations, was not allowed to follow his physicians' advice and stay off work.

10Mr. Norman had provided further medical documentation to the respondents after our preliminary discussions on March 11, 2009. Those documents were not entered into the record. If the respondents wish to continue to dispute whether the applicant's medical condition amounted to a disability in the circumstances of this Application and the applicant wishes to have those documents entered into evidence, I will consider whether to allow this under Rule 4.3 (h) of the Rules of Procedure for Applications under s. 53(3) and s.53(5) of the Code (the "Rules").

11I accept that the applicant refuted many of the allegations made in the Application. For example, the applicant admitted that his employer did not deduct time off work from his regular wages while he was off work due to his disability and that the employer's medical plan had been eliminated in the early 1990s, prior to the relevant time for his Application. However, I am satisfied other allegations remain in dispute and require a response from the respondents.

Family Status

12The underlying complaint and the applicant's testimony allege that he was "harassed" in his employment not only with regard to his medical issues but also his daughter's medical issues which required his time away from work. In my view, again despite admissions in his testimony that contradicted much in his underlying complaint, the applicant's evidence does support the allegation the respondents changed procedures for taking time off once his daughter's illness required his absence from work. I am satisfied the applicant's testimony and underlying complaint set out a prima facie case of discrimination on this ground and thus the onus is on the respondents to provide a non-discriminatory explanation for their practices or to bring themselves within an exception provided for in the Code.

Removal of the Personal Respondent

13Mr. McDonald argued for the removal of the personal respondent, Gary Gilbert, on the basis that there is no prima facie case against him. Moreover, the corporate respondent would be vicariously liable for Gary Gilbert's action, if proven. Mr. Norman argued that Mr. Gilbert was the "directing mind" of the corporate respondent and that the applicant had made specific allegations regarding Mr. Gilbert.

14Since the Application makes specific allegations against Mr. Gilbert and there is no doubt that the personal respondent would be required to attend the hearing in any event, since his evidence would be required, I am satisfied this issue is best addressed in closing submissions.

Delay

15The respondents raised the issue that certain paragraphs in the Application which addressed incidents from 2002 to 2005 should be dismissed for delay. Section 34(1)(b) of the Code provides that an application may be filed within one year after the last incident in a series of incidents of alleged discrimination. In this case, the underlying complaint was filed on September 29, 2006 and alleges a series of incidents involving alleged discrimination which occurred from 2002 to when the applicant was provided notice of his termination on September 8, 2006. In the circumstances, I am satisfied the series of incidents fall within the ambit of s.34(1)(b).

16The respondents raised concerns about prejudice resulting from the applicant allegedly failing to raise his allegations in a timely manner. I will be alert to these concerns in considering and weighing the evidence.

Disclosure

17The respondents argued that the applicant's failure to produce documents in accordance with the Tribunal's Rules prejudiced the respondents' right to procedural fairness. Mr. McDonald argued that last minute compliance did not allow the respondent sufficient time to prepare and meet vague, wide ranging and technical allegations made against the respondents.

18While I share the respondents' concern about the applicant's failure to comply with the disclosure obligations contained in the Rules, for which Mr. Norman must take responsibility, I do not agree the allegations contained in the underlying complaint were particularly vague or technical. The applicant's disclosures, while late, were what would be anticipated in an application of this nature. In the end, Mr. McDonald was able to conduct a very successful and effective cross-examination of the applicant.

19Any prejudice or unfairness to the respondents has, in my view, been addressed by the fact the respondents have had the time since the March 12 CRC hearing to consider the disclosure and production and the applicant's testimony.

Case Management Directions

20I provide the following directions in order to provide further clarity to the parties regarding my expectations for how this matter is to proceed.

21At our initial preliminary discussions, I envisioned that this matter could be bifurcated with the assessment of damages occurring only if I found that an infringement under the Code had been established on a balance of probabilities. As such, there was no evidence from the applicant regarding damages.

22In light of how this matter has progressed, it may be appropriate that the testimony from the respondents' witnesses and the assessment of damages can be properly addressed in one additional hearing date since Mr. Norman advised that he did not intend to conduct a lengthy examination in-chief regarding the applicant's damages and cross-examination of the respondents' witnesses. I will allow the parties an opportunity to provide submissions on this at the reconvened hearing. As such, both parties should be prepared to address the damages issue and whether closing submissions is more appropriately done in writing in order to dispose of this matter in one additional hearing day.

23Further, I note that the applicant has provided little documentation regarding his damages claim. The applicant must provide any documents to the respondents and the Tribunal he intends to rely on in support of his damages claim within 30 days of the date of this CRC Decision. Examples of such documents may include the applicant's 2007 and 2008 T4 statements and a recent Record of Employment.

24The Registrar-Transition will canvass the parties and schedule one (1) CRC hearing date for the resolution of this matter.