Michalek v. PNF Holdings, 2009 HRTO 91

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maria Michalek

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

PNF Holdings Limited and RNE Holdings Limited o/a Park ’N Fly and Erwin Singh

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: January 27, 2009

Citation: 2009 HRTO 91

Indexed as: Michalek v. PNF Holdings

WRITTEN SUBMISSIONS BY

Maria Michalek, Complainant ) Nicole Chrolavicius, ) Counsel

PNF Holdings Limited and RNE Holdings ) Mark E. Geiger, Counsel Limited o/a Park ’N Fly, Corporate Respondent )

Ontario Human Rights Commission ) Bay Ryley, Counsel

INTRODUCTION

1This Interim Decision addresses the corporate respondent’s Request for Order During Proceedings (“Request”).

2The complaint, dated February 15, 2005, was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) by letter dated April 16, 2008. The hearing commenced with an initial conference call on May 20, 2008, and the parties have since completed the exchange of hearing briefs. In their pleadings, both the complainant and the Commission seek a finding that the complainant was subjected to discrimination on the basis of sex and ethnic origin, and sexual harassment, in employment, contrary to sections 5(1), 7(2) and 9 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

REQUEST FOR ORDER DURING PROCEEDINGS

3The corporate respondent’s Request is for:

An order that the complainant and/or the Chief of Police for the Region of Peel provide to the respondent the original electronic/digital version of the five (5) photographs of Maria Michalek’s injury taken by Andrew Kastelic #1370, on July 13, 2004 (DSC_9035 to DSC_9039);

An order that the complainant, or the named doctors, disclose and provide to the respondent all clinical notes, and any other documents of any sort taken by the following doctors in regards to Maria Michalek and the alleged incident of July 11, 2004:

(a) Dr. Jerry Jakubowski who was the first physician that saw Maria Michalek either on July 4or on July 13, 2004, two days after the alleged incident;

(b) Dr. Danvta Malinowski who treated Maria Michalek for alleged depression and anxiety on November 21, 2005;

(c) Dr. Tahany D. Banoub, a psychiatrist who has diagnosed Maria Michalek as suffering from major depressive episodes, and anxiety disorder; and

(d) Dr. Zuchelkowski, who also treated Ms. Maria Michalek for depressed mood and anxiety.

An order that the Complainant and/or the Commission shall not bring, and the Tribunal will not grant, a Request for Order During Proceedings, or any motions, attempting to remove Mr. Mark E. Geiger, and the law firm of Blaney McMurtry LLP, in which he is a partner, as solicitors of record, because of any alleged improprieties that might arise as a result of the joint representation of Park ’N Fly and Erwin Singh by Mr. Mark Geiger and the firm Blaney McMurtry on grounds similar to those alleged in R. v. Con-Drain Co. (1983) Ltd., 2008 ONCJ 114 [Con-Drain].

4The corporate respondent asks that the Request be heard in person while the complainant requests that it be dealt with in writing. Pursuant to Rule 80 of the Tribunal’s Rules of Practice, the Request will be dealt with in writing.

Original Electronic/Digital Version Of Photographs

5The corporate respondent seeks an order that the complainant and/or the Chief of Police for the Region of Peel produce the original electronic/digital version of five photographs of the complainant’s injury taken on July 13, 2004.

6The corporate respondent submits that it provided copies of the photographs, provided to it by the complainant, to a forensic expert regularly used by the Crown in prosecutions involving bites. It submits that the expert is of the preliminary opinion that the photographs do not show wounds that would be produced by biting. However, in order for the expert to be able to provide his best evidence, it is submitted that he will need to examine the best version of the digital photographs that are available.

7The complainant opposes the request for production of electronic/digital versions of the photographs. The complainant submits that she has produced clear, colour photographs which were obtained as a result of an access request for personal information made under the Municipal Freedom of Information and Protection of Privacy Act. The complainant submits that she does not have original electronic/digital versions of the photographs and agrees with the Commission’s submission that the copies provided are entirely adequate.

8While the corporate respondent submits that the Tribunal has the jurisdiction to require a non-party to produce any document, information or thing that is arguably relevant, there is no indication that the Chief of Police for the Region of Peel has been served with the Request. In the circumstances, it would not be appropriate for the Tribunal to consider the request for production of the original electronic/digital version of the photographs without the Chief of Police having been provided with notice of the Request and an opportunity to make submissions. Should the corporate respondent wish to pursue this aspect of the Request, it should serve the Chief of Police with the Request.

Clinical Notes Regarding The Alleged Incident Of July 11, 2004

9The corporate respondent seeks production of all clinical notes, and any other documents of any sort taken by four named doctors, in regards to the complainant and the alleged incident of July 11, 2004.

10The complainant submits that she has agreed to produce those portions of her medical records that are directly relevant to her complaint, beyond what has already been provided, once such records are received. The complainant submits that she has requested, from the four named doctors, all records relating to the medical treatment she underwent after her assault on July 11, 2004. She indicates that she received Dr. Jakubowski’s clinical notes and the portions directly relevant to her complaint were being forwarded to the respondents. The complainant also agrees with the Commission’s submission that the request for production of these documents is premature.

11It appears that the complainant is complying with the corporate respondent’s request for production of relevant medical records. Accordingly, no order is necessary at this point in time. Any outstanding issues regarding the production of medical records, including issues with respect to the timing of production, can be dealt with at the pre-hearing conference call scheduled for January 30, 2009, when hearing dates will also be set.

That The Complainant And/Or The Commission Shall Not Bring, And The Tribunal Will Not Grant, A Request For Order During Proceedings Attempting To Remove Counsel For The Corporate Respondent

12Lastly, the corporate respondent requests an order that the complainant and/or the Commission shall not bring, and the Tribunal will not grant, a Request for Order During Proceedings, or any motions, attempting to remove counsel for the corporate respondent, and the law firm in which he is a partner, as solicitors of record, because of any alleged improprieties that might arise as a result of the joint representation of the corporate and personal respondents on grounds similar to those alleged in Con-Drain supra.

13The corporate respondent submits that, if the personal respondent seeks independent legal advice and decides that he wants to be represented by counsel for the corporate respondent, the corporate respondent will allow its counsel to also represent the personal respondent. It is submitted that counsel for the corporate respondent is aware of his obligations and the fact that he has a heavy onus to ensure that there is no conflict posed by the joint representation of co-respondents. In the event a legal issue, not currently known, arises between the corporate and personal respondents, counsel for the corporate respondent will cease to represent the personal respondent but will continue to represent the corporate respondent. However, counsel for the corporate respondent will not take the risk of representing the personal respondent if there is a possibility that he and his firm could later be removed from the case as a result of an allegation of impropriety made by either the Commission or the complainant, similar to that made by the Crown in Con-Drain.

14The Commission opposes the request for an order of this nature and submits that if it were to become necessary to bring a motion to protect and advance its interest in this proceeding, or to resolve a conflict, it must be free to do so. The Commission submits that it would be highly inappropriate for the Tribunal to restrict the rights of the Commission to bring a motion of any kind. Further, if the Tribunal determined that the removal of counsel was the only way to remedy a conflict of interest, as the Court held in Con-Drain, it must so order. The complainant also opposes the request, relying on the submissions of the Commission.

15In my view, it would be inappropriate to restrict either the rights of the Commission and/or the complainant to bring, or the Tribunal’s ability to appropriately consider, a future Request for Order During Proceedings. The corporate respondent’s request for such an order is dismissed.