Pais v. RONA Ontario Inc., 2010 HRTO 1394

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lester Pais Applicant

-and-

RONA Ontario Inc. Respondent

INTERIM DECISION

Adjudicator: Judith Keene Date: June 21, 2010 Citation: 2010 HRTO 1394 Indexed as: Pais v. RONA Ontario

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on June 4, 2009, alleging discrimination in employment on the ground of disability, race, colour, ancestry, place of origin, and ethnic origin. A hearing is scheduled for June 28 and 29, 2010.

2A teleconference was held on May 18, 2010 to clarify issues in advance of the hearing and to deal with disclosure issues arising before the hearing. This gave rise to an Interim Decision, 2010 HRTO 1124.

3The purpose of this Interim Decision is to determine two subsequent Requests for an Order During Proceedings, (RFOPs) and to address some evidentiary issues in advance of the hearing.

THE APPLICANT'S RFOP

4The applicant is self-represented. He did not check off the box next to "age" on the list of grounds of discrimination on the Application. The Application does not specifically allege that age was one of the reasons why the applicant's employment was terminated. However, his attached written narrative mentions terminations based on age as well as race.

5In an RFOP filed on May 25, 2010, the applicant asks to amend the Application to specifically add age to the alleged grounds of discrimination, as well as amending certain other parts of the Application. The RFOP also requested that the respondent be required to disclose the address of a former employee of the respondent, whom the applicant wishes to call as a witness, but the applicant has subsequently withdrawn that request.

6The applicant wishes to change three allegations made in the Application. The first relates to particular needs related to disability. The Application originally stated "I cannot see well in dark lighting". The applicant wishes to add "I cannot read small print well" and "I cannot work in a stressful environment that could cause a relapse of my eye condition". The second statement originally read "I told Rona I could no longer work the night crew and requested a transfer back to the sales floor". The applicant wishes to add "I requested a transfer to another department and/or to another store". The third statement, the applicant's response to the question whether the respondent met his needs for accommodation, was originally "yes". The applicant wishes to change it to "no".

7The respondent opposes the amendments, stating that it would be prejudiced because it would be forced to spend extra time doing fact-finding, research and preparation. However, upon review of the materials filed by both parties in this matter, it appears to me that all of what the applicant wishes to change is reflected in the documentary evidence, including e-mails between the parties while the applicant was still employed. The respondent has therefore been aware of the applicant's allegations for some time. Even the change from "yes" to "no" in respect of the question about whether the respondent made efforts to accommodate does not represent a significant change, as the original Application clearly alleges that the respondent did undertake some accommodation, but that the respondent's efforts to accommodate were allegedly insufficient. The applicant has not in fact changed his position that an effort was made.

8In the circumstances, I cannot see how the respondent would be prejudiced by my granting the applicant's request to amend even at this late stage. The Application will be amended to add the ground of age, and to add the following allegations: "I cannot read small print well", "I cannot work in a stressful environment that could cause a relapse of my eye condition", and "I requested a transfer to another department and/or to another store". The request to change the answer to question A 18 of the Application from "yes" to "no" is denied, as it does not logically reflect the applicant's stated position.

THE RESPONDENT'S RFOP

9In an RFOP filed on May 21, 2010, the respondent requested an order requiring the applicant to provide documents or information relating to his efforts to locate new employment or otherwise mitigate his alleged damages.

10In his Application the applicant has made it clear that he is claiming monetary compensation for lost salary. If the applicant is successful at the hearing in establishing that discrimination contrary to the Code has occurred, he must also establish that he made reasonable efforts to mitigate (reduce) any financial loss he claims he has undergone.

11In its RFOP, the respondent has itemised several types of information that could be used by the applicant to establish that he has complied with his duty to mitigate, such as applications for employment, other documents that evidence job search efforts, pay stubs and benefit statements. The applicant has not filed with the Tribunal and sent to the respondent any such documents.

12The applicant's obligation under Rule 16.1 to produce to the respondent all arguably relevant documents would encompass these sorts of documents. The applicant is ordered to send any such documents to the respondent immediately if they exist.

OTHER EVIDENTIARY ISSUES

13On May 17, 2010, the Tribunal received a witness list, statements of witnesses' expected evidence, documents and a Statement of Delivery from the respondent, in compliance with its obligations under Rules 16 and 17 of the Tribunal's Rules of Procedure. On June 1, 2010, the Tribunal received certain statistics from the respondent pursuant to the above-noted Interim Decision in this matter.

14On May 13, 2010, the applicant sent the Tribunal a witness list, statements of witnesses' expected evidence, a list of documents noted as "previously sent". Also on May 13, 2010, the applicant filed with the Registrar by e-mail, copied to the respondent, two additional documents and a Statement of Delivery.

15By letter of May 17, 2010 copied to the Tribunal the respondent indicated to the applicant that it had received only four of the 14 documents listed in the e-mail.

16I have reviewed the filed materials, and it appears to me that a number of the items indicated on the applicant's list appear to be among materials filed with the Application, or early in May, or are among the respondent's filed documents. However, it appears that there is no filed document that would correspond to the description "blood test results", nor any other medical documentation to support the applicant's allegation that he suffers from any disability.

17As the applicant is self-represented, I make the following observations in the interest of an efficient and fair hearing.

18It is the responsibility of the applicant to bring sufficient evidence before the Tribunal to establish any alleged breach of the Code. It is also the responsibility of the applicant to disclose any documentary evidence on which he or she intends to rely in advance of the hearing, in compliance with the Tribunal's Rules of Procedure.

19In its Response to the applicant's RFOP, the respondent requested an order for more particulars concerning the applicant's allegation of failure to accommodate. While I decline to order that these questions be answered by the applicant in advance of the hearing, the applicant should note that the respondent is certainly entitled to ask the questions at the hearing. As noted above, the respondent also raised questions about mitigation of damages, which may also be asked at the hearing.

20As noted above, the respondent has produced statistics concerning the individuals affected by the relevant layoffs. The respondent had contested an RFOP by the applicant asking for the production of statistics in respect of stores other than the two stores in which the applicant had worked, on the basis that disclosure would reveal private information of other employees. The statistics were clearly relevant to this Application, but I agreed to review them before determining whether to order disclosure. The above-noted Interim Decision in this matter contemplated a further case management teleconference to deal with this and any other issues. A teleconference was arranged, but cancelled at the request of the applicant.

21This leaves the issue of disclosure of this information to be determined at the start of the hearing on June 28, 2010. Having reviewed the information provided, I have some difficulty seeing why any privacy concerns, much less concerns sufficient to exclude relevant evidence, would be triggered, but I will hear from both parties at the hearing before making a final decision.

22The respondent has not been ordered to disclose information in advance concerning the age and race of the employee population just prior to the layoff, against which the layoff group may be compared. However, this evidence is relevant to the applicant's allegation that an individual of his age and race was more likely than others to be laid off at the relevant time. To use an example not related to the pending hearing, information that 10% of persons laid off by a business were members of Group X would indicate that Group X was disproportionately represented among terminated employees only if Group X made up less than 10% of the pre-termination employee population. The bare fact of over-representation does not in and of itself lead to a finding that the Code has been breached, but it is, of course, relevant evidence.

23The respondent is ordered to make best efforts to obtain the relevant information concerning the pre-layoff employee population, before the hearing.

24As noted above, I will deal with any remaining procedural and evidentiary issues at the beginning of the hearing.