HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thao Ngoc Chau
Applicant
-and-
Olymel S.E.C./L.P.
Respondent
-and-
United Food & Commercial Workers Canada,
Locals 175 & 633
Intervener
Interim DECISION
Adjudicator: Sherry Liang
Indexed as: Chau v. Olymel S.E.C./L.P.
1This is an Application filed on July 30, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he has been discriminated against and harassed in his employment on the basis of race, ancestry, place of origin and ethnic origin.
2This Interim Decision deals with certain case management issues, a request to defer the Application made by the respondent, and the Request to Intervene made by the United Food & Commercial Workers Canada, Locals 175 & 633 (the “union”). A hearing is scheduled in the matter on June 10 and 11, 2009.
PARTICULARS
3Following mediation of this matter, the parties agreed to certain procedural steps and signed a Post-Mediation Case Management Checklist. The applicant agreed to provide further particulars by February 27, 2009, but has not done so. On my review of the Application, it is necessary that the applicant provide particulars in order that the issues for hearing be clearly defined. Accordingly, the applicant is directed to provide particulars, including dates, names and a description of the events, for the following allegations:
that Michele Boudreault, Manager of Human Resources, singled out “Chinese, Vietnamese and even the Blacks” for differential treatment;
that Mr. Boudrault “started complaining about our English and accent.”;
that Mr. Boudrealt warned the applicant that “he was going to terminate me because I do not speak English properly.”;
that “together with Mr. He, Mr. Boudrault escalated his harassment towards me.”;
That he was demoted on August 28, 2007 because his English was poor;
That the applicant has become a laughing stock to other non-Chinese co-workers;
That management was aware of the incident on June 18, 2008 but did nothing;
That management failed to act on discrimination;
That the applicant complained about the alleged discrimination and harassment to his union representative and to management;
That Mr. Boudrault condoned discrimination of Chinese and Vietnamese workers by other workers;
That Mr. Boudrault treated the Chinese and Vietnamese employees with no dignity or respect;
That Mr. Boudrault said “we are lucky to have a job at Olymel.”
4The applicant must provide these particulars to the other parties and to the Tribunal by Monday, May 11, 2009. Failure to comply with this direction may result in the Tribunal refusing permission to the applicant to call evidence on facts that were not disclosed through particulars.
REQUEST TO INTERVENE
5Neither the applicant nor the respondent has responded to the Request to Intervene. Based on the material before me, I grant the union’s Request. The union is the bargaining agent for the applicant, and filed a grievance on his behalf with respect to some of the events at issue, specifically, the applicant’s displacement from his position through the bumping process under the collective agreement. When the union withdrew the grievance, the applicant made a complaint to the Ontario Labour Relations Board (the “OLRB”) alleging that the union had violated its duty of fair representation. It also appears from the materials that the applicant and the union disagreed about the proper interpretation of the collective agreement. I am satisfied that the union has an interest in the Application.
6The union has filed a list of witnesses it may call at the hearing, along with a summary of the evidence of these three witnesses. However, it is not clear that the evidence of these witnesses will be necessary in order to determine the issues in the Application. The evidence of the witnesses appears to be directed at establishing that the union did not discriminate against the applicant or otherwise fail in its duties as the bargaining agent for the applicant. Although the applicant has completed a portion of Form 1-A stating that he complained about the alleged harassment and discrimination to his union representative, he has not provided particulars of this and the union is not a respondent to the Application. The Tribunal does not propose to hear the evidence of these witnesses, subject to any particulars from the applicant requiring a response from the union and any submissions the union may make at the hearing.
REQUEST TO DEFER
7In its Response, the respondent requested that this Application be deferred pending the conclusion of the complaint to the OLRB made against the union. The respondent has provided a copy of that complaint. Although the respondent is named as a party on the OLRB complaint form, the complaint is based on an allegation that the union violated its duties towards the applicant under the Labour Relations Act. It is evident from the materials that the applicant disagreed with the union’s decision not to refer his grievance to arbitration.
8Although there is some overlap between the facts at issue in the complaint to the OLRB, and the Application before the Tribunal, the legal issues and the legal framework are different. This Application alleges discrimination as against the applicant’s employer, not the union. It is also much broader in scope than the matter covered by the grievance, the bumping of the applicant out of his position. I see no reason to defer this Application.
PRE-HEARING PRODUCTION UNDER RULES 16 AND 17
9On March 23, 2009 the Tribunal sent a Notice to the parties to confirm that the Tribunal had re-scheduled the hearing in this matter to June 10 and 11, 2009. The Notice indicated that the parties were to meet the disclosure requirements set out in Rules 16 and 17 of the Tribunal’s Rules of Procedure. Rules 16 and 17 require the parties to send all arguably relevant documents to each other. In addition, they are to send each other as well as the Tribunal, copies of the documents they wish to rely on at the hearing, a list of proposed witnesses and statements briefly describing the witnesses’ intended testimony. Some of these requirements must be met no later than 21 days after the Confirmation of Hearing Notice is issued, some no later than 45 days prior to the first day of hearing.
10The Tribunal has received material under Rules 16 and 17 from the union. It has not received such material from the applicant or the respondent, although the respondent enclosed a number of documents with its Response.
11Rule 5.6 of the Tribunal’s Rules of Procedure states that when a party fails to deliver materials to another party as required by the Tribunal’s Rules the Tribunal may refuse to consider the material or may take any other actions it considers appropriate. Rules 16 and 17, as reinforced by Rule 5.6, are meant to ensure that parties know about any documents that are relevant to their case, and also what documents and witnesses they may face at the hearing.
12It may be that the applicant has sent all arguably relevant documents to the other parties but if he has not, he must do so immediately.
13Also, if the applicant plans to introduce documents or call witnesses at the hearing, he must comply with Rules 16 and 17 immediately, and forward these materials to the other parties and the Tribunal.
14Following receipt of the particulars from the applicant, the respondent must also comply with Rules 16 and 17. If there are arguably relevant documents which have not been sent to the other parties, it must produce those. If the respondent plans to introduce documents in addition to those enclosed with the Response, or call witnesses, it must comply with Rules 16 and 17. The respondent must comply with these directions by Monday, May 25, 2009.
15Failure to comply with Rules 16 and 17 may result in the Tribunal refusing permission to a party to introduce documents or evidence of witness they did not disclose.
Dated at Toronto this 4th day of May, 2009.
“Signed by”
Sherry Liang
Vice-chair