HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jaculine Medley
Applicant
-and-
Brendan Wood International, Brendan Wood, Nora Turkevics, Stewart Borden, Ajay Walia, Jordan Novak, Viktoria Mirtchevsky and Eric Hansen
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Medley v. Brendan Wood International
1This Application was filed on December 20, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The Application alleges discrimination in respect to employment on the grounds of race, disability, sex, family status, association with a person identified by a ground under the Code and reprisal. This Interim Decision deals with the Requests for Orders during Proceedings filed by the applicant and respondents which include requests to add and remove respondents, to amend the Application, to require the production of documents and to dismiss the Application.
BACKGROUND
2The applicant was employed by Brendan Wood International (the “corporate respondent” or “BWI”) as an intern research associate from June 15, 2009 to October 23, 2009 when her employment was terminated. The applicant’s allegations centre on comments made by BWI employees at meetings in October 2009 that the applicant found demeaning and discriminatory. The applicant alleges that further offensive comments were made in relation to a disability she has and that BWI did not appropriately accommodate her need for time to care for a family member with a disability. The applicant alleges that BWI acted in a retaliatory manner when she made known that she had concerns about whether her rights under the Code were being violated which included in BWI’s decision to terminate her employment.
3The corporate respondent and the seven personal respondents have each filed Responses. They deny all of the applicant’s allegations of discrimination including the alleged discriminatory nature of comments made to the applicant and argue that it was the applicant’s poor work performance and inappropriate conduct that caused tensions in the workplace and led to the termination of her employment.
4Of note Brendan Wood, the chair and senior partner of BWI, submitted with his Response to the Application an issued statement of claim in a libel action commenced by BWI and himself against the applicant. The statement claims that the applicant had made false and egregious statements regarding BWI and Mr. Wood on the internet after her employment was terminated. It appears this statement of claim was never served on the applicant. However, the applicant has issued a statement of defence and counterclaim. A copy of the supposed article posted on the internet is before me. It critically discusses working conditions and rates of pay at BWI as well as BWI project management practices. The article does not refer to the specific allegations raised in the Application nor refers to any other allegations of discrimination.
5The applicant has filed seventeen Requests for Orders During Proceedings (“RFOPs”) with the Tribunal. The respondents have filed three RFOPs. In only a few instances have the parties filed responses to these RFOPs. The Tribunal has also received correspondence from the parties urging the Tribunal to take certain actions, in most cases actions that have been requested as part of an RFOP.
Applicant’s RFOP to Add Respondents and Amend the Application
6The Application names Brendan Wood International, the corporate respondent, and seven individuals as respondents. The seven named individuals are co-workers of the applicant, some holding management positions.
7The applicant would like to add three corporate respondents, BW International, First Intelligence Corporation and The Brendan Wood Companies, submitting that they are interrelated corporations which have all been identified in the applicant’s employment contract. The applicant submits that these corporate identities have been referred to interchangeably by the respondents meaning that discriminatory acts committed by BWI have also been committed by these three corporations.
8This Request is denied. While it is true that the applicant’s employment contract refers to additional corporate entities namely Brendan Wood Companies and First Intelligence Corporation (identified as formerly being BW International Inc.) as well as Brendan Wood International (BWI) the employment contract also clearly states that the applicant is an employee of BWI. As the applicant’s allegations of discrimination, including her termination are related specifically to her employment I see no need to add further corporate respondents.
9However, the Tribunal does note that in its statement of claim the corporate respondent identifies itself as First Intelligence Corporation carrying on business as Brendan Wood International (as well as identifying the applicant as an employee of BWI). The Tribunal directs the corporate respondent to confirm its proper corporate name for the purposes of ensuring that the style of cause is accurate.
10The applicant seeks to add Johann Rodrigues and Amanda Knott as personal respondents. These two persons are managers at BWI. The applicant submits that Johann Rodrigues and Amanda Knott were present at the meeting of October 22, 2009 at which a statement the applicant found to be offensive was made. The applicant submits that these two persons failed to take any action to put an end to the discriminatory treatment the applicant received and thus failed to uphold the Code. The applicant further alleges that these two persons fabricated and submitted defamatory letters about the applicant to the human resources department at BWI and played an active role in the ultimate decision of BWI to terminate the applicant’s employment.
11Both Johann Rodrigues and Amanda Knott provided responses to the applicant’s Request arguing that they should not be added as respondents. They contend that they did not find that the comment made on October 22, 2010 was discriminatory in nature and, as such, it did not warrant a response from them and that their letters were accurate, factual assessments of problems they had observed with the applicant’s work.
12The test for adding respondents has been articulated at paragraph 12 in the Smyth v. Toronto Police Services Board, 2009 HRTO 1513.
When determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
13It is not immediately clear that the applicant’s allegations regarding Johann Rodrigues and Amanda Knott’s actions would support a finding that the Code had been violated. They are not accused of the discriminatory actions identified by the applicant in her Application including any of the alleged demeaning comments. It is not evident that they had any input into the decision to terminate the applicant. However, even if their actions could generate a possible Code violation I see no compelling reason to include Johann Rodrigues and Amanda Knott as respondents given the peripheral nature of their involvement in the events central to the Application’s allegations and the fact that the applicant has named a corporate respondent who has indicated, albeit in a different RFOP, that BWI has the ability to respond to or remedy the alleged Code violation if liability is established. I agree with the Tribunal’s decision in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 when it states that the unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution.
14The applicant also requests in this RFOP that the Application be amended and provides a proposed amended response to question 8 on the Application form (which asks applicants to describe each incident of alleged discrimination). The applicant’s proposed amended Application includes extensive references to the statement of claim filed by BWI and Brendan Wood alleging that the applicant committed libel and that she had posted defamatory statements on the internet about what it was like to work for BWI. The proposed amended Application indicates that the applicant intends to prove that the contents of the internet postings are not libellous but factual. The proposed amended Application then goes on to identify approximately 20 steps the applicant intends to take as part of her human rights hearing to prove that the internet postings are factual including subpoenaing and entering into evidence testimony of past employees about rates of pay, working conditions, and the quality of work produced at BWI. It describes the applicant’s intent to subpoena various BWI clients about different aspects of their working relationships with BWI. The applicant states that by proving that the statement of claim’s contention that she acted in a libellous fashion is false she will be able to bring to light the extent to which the respondents will go to infringe on her rights under the Code and to bully and scare her into dropping her human rights complaint.
15The applicant’s request to amend her Application as described is denied. The applicant’s primary interest is clearly in challenging the merits of the statement of claim about whether she acted in a libellous manner after she left her employment with the corporate respondent. Proving whether allegations made on the internet about working conditions at BWI are true is not related to the issue of whether the applicant was discriminated against while employed by the corporate respondent.
The Applicant’s RFOPS for Information, Particulars and Documents from Third Parties.
16The applicant has filed nine RFOPs asking for various information, particulars and documents from six former employees, two clients of the corporate respondent and a law firm. The six RFOPs related to the six former employees of BWI are all similar. In each case the applicant has written directly to the former employee to state that the applicant has filed an Application with the Tribunal and believes that the employee in question has knowledge and documents that will be relied on in the Tribunal proceedings and accordingly she has enclosed a Request for an Order. The applicant goes on to explain that the information she is seeking was requested from one or more of the respondents but that the respondents refused to co-operate in this matter. The applicant then states that consequently, pursuant to Rule 19 of the Tribunal’s Rules of Procedure, the information is being requested from the former employee in question.
17The applicant has sent each of the six former employees an RFOP including an appendix with a number of specific requests for information, documents and particulars. These include the following requests:
Please provide a statement regarding your work experience while employed at BWI
Please provide any supporting documentation in relation to the human rights complaint between you BWI .
Please comment to the best of your knowledge and ability the quality of reports done by BWI
Please provide a list of names that you know of who have filed complaints against BWI with the Human Rights Tribunal, Ministry of Labour…
18The applicant has filed two RFOPs requesting that two corporate clients of BWI provide any and all correspondence between these clients and BWI from June 15, 2009 to the date of the applicant’s request. In one of these RFOPs the applicant asks for a statement from the corporate client about the nature and quality of reports the client received from the corporate respondent. In the other RFOP the applicant asks the corporate client to describe in detail the nature of its relationship with BWI.
19The applicant has filed an RFOP requesting that a New York based law firm produce and/or disclose knowledge/documents and information related to the content of the information that was posted on the internet about working at BWI. The applicant states that this information is required because the respondents have made an allegation of libel against the applicant in relation to an internet posting and that the information this law firm may have would support the applicant’s contention that the allegations made by the respondents are false.
20The applicant has also sent documents with each of these nine RFOPs including the Application, the respondents’ Responses, the applicant’s Reply, the statement of claim and the statements of defence and counterclaim.
21The respondents have not provided specific responses to these nine RFOPs. However, they do indicate in correspondence to the Tribunal and in their own RFOPs requesting that the Application be dismissed as an abuse of process that the applicant has engaged in a deliberate and calculated campaign to disseminate and distribute inflammatory allegations against the respondents. They argue that the applicant is seeking to damage their personal and professional reputations in the industry.
22The applicant’s nine RFOPs requesting that certain third parties be required to provide information, particulars and documents are denied. It appears that the applicant has not fully understood and/or has disregarded the Tribunal’s RFOP process and the Tribunal’s disclosure rules. To begin, the applicant’s communication with these third parties appears to suggest that they are required to respond to her direct request for information, particulars and documents. They are not. It is the Tribunal’s decision as to whether the Tribunal will order parties or others to take certain actions. The applicant’s proper request is to the Tribunal (at the appropriate time), not to third parties and not in a manner that could easily be interpreted by the recipients as a request they are obliged to meet pursuant to the Tribunal’s rules.
23It also appears that the applicant believes that the third parties that she has contacted can be obliged to create written accounts or statements on issues of concern to her. It is not the Tribunal’s function to order third parties to produce this type of evidence for the benefit of a party as it seeks to prepare its case. The request for particulars is also inappropriate. It appears that this request is essentially asking the recipients to provide detailed and specific accounts or statements. However, a request for particulars is generally a request by one party to another party to a dispute to provide more specific information about the material facts that they have alleged to be true and that they intend to rely on to support their case.
24It also appears that the applicant does not understand or has chosen to disregard the rules about when and how the disclosure of documents should take place. It is perhaps helpful to briefly explain the process the Tribunal sets out for the sharing of documents. I quote from the Tribunal’s Guide to Preparing for a Hearing Before the Tribunal:
The purpose of the Tribunal’s requirements for disclosure of documents is to ensure a fair and expeditious process. Each party has a right to know what the other side’s case is about. Disclosure helps the parties prepare for the hearing. If the parties have fully disclosed their positions, documents and witnesses, the hearing runs more expeditiously and fairly, and no one is taken by surprise.
Within 21 days of the Confirmation of Hearing, each party must deliver to every other party a list of all arguably relevant documents in their possession. Arguably relevant documents are documents that have some relevance and connection to an issue or issues in dispute in the application, including the remedy being asked for. These include documents that the party intends to use at the hearing and documents that the party does not intend to use but are otherwise relevant to the case. Where privilege is claimed over any document, the party must describe the nature of the document and the reason for claiming that the document is privileged (e.g. the document is a communication between the party and its lawyer for the purpose of getting legal advice.
The documents should not be filed with the Tribunal. But, Statements of Delivery (Form 23) must be filed with the Tribunal to confirm that this requirement has been met. Some parties have thought that the documents should be attached to the Statement of Delivery. This is not necessary. Then, forty-five days (45) prior to the scheduled date for the hearing, the parties must deliver to every other party, and file with the Tribunal. A list of documents that the party plans to rely on at the hearing; and A copy of each document on the list (if it has not already been provided), or confirmation that each document has already been provided as required above. The parties are expected to only include the documents they intend to rely on at the hearing. These are the documents the party believes are necessary to prove or support their position, including their position on remedy. Often this will be a much smaller number of documents than the party disclosed as arguably relevant to the issues in dispute. Documents can include written documents (policies, memos, emails, contents of a human resources file etc.) as well as other things such as photographs, sound recordings, videotapes, charts, graphs, maps, floor plans, information stored electronically and even physical objects.
If a party fails to disclose a document another party believes to be arguably relevant the other party can request the Tribunal to order that the document in question be shared. Parties make these requests by means of an Request for an Order during Proceedings (RFOP) (Form 10). The Tribunal will issue its decision after considering the request and any reply received from other parties (Form 11).
25The applicant’s RFOPs inappropriately seek documents from third parties before the Confirmation of Hearing has been issued, and the parties to the dispute have been through the disclosure process, and have had the opportunity to identify arguably relevant documents. If a party seeks production of additional arguably relevant documents from the opposing party or a third party, it should be requesting a production order from the Tribunal after the deadlines for disclosure have passed.
26It is also important that the applicant understand that any requested documents must be arguably relevant to the issues in dispute which in this case are issues related to the alleged discriminatory treatment of the applicant. Documents related to how other employees may have been treated by the respondents in the past or the nature of the corporate respondents relationship with corporate clients or how information on the internet may have been posted do not necessarily meet this test.
27The nature of the applicant’s RFOPs to former employees also suggests that the applicant contemplates that some of these former employees could be witnesses at a hearing. The panel would draw the applicant’s attention to the Tribunal’s Rules regarding witnesses and the fact that the Tribunal will decide whether to hear a witness depending on whether the testimony is relevant to the issues the Tribunal must decide.
The Applicant’s RFOPs for Materials from the Respondents and MKD International Inc.
28The applicant has filed RFOPs requesting that Stewart Borden and Viktoria Mirtchevsky provide sworn affidavits regarding what happened with a 2009 study prepared by BWI. The applicant also seeks invoices related to this study and copies of any and all written and e-mail correspondence received from clients as well as between Mr. Borden and others at BWI as to problems that may have occurred with this study.
29These two RFOPs are denied. Again these requests inappropriately direct the recipients to provide information rather than asking the Tribunal to issue an order in relation to the information the applicant seeks. Moreover, the request that an opposing party provide a sworn affidavit is inappropriate. It is the prerogative of the party in question, in this case two of the respondents, to initially decide how to provide evidence about an issue in dispute. The further request for e-mails and correspondence is premature as it needs to take place as part of the disclosure process already described. It is open to the applicant to make these requests for e-mails and documents again, by means of an RFOP, at the appropriate time in the disclosure process. It is, of course, open to the respondents to respond to such an RFOP and to challenge whether the requested documents are arguably relevant.
30The applicant has filed RFOPs requesting documents from BWI and Brendan Wood and from Thomas Klatt, the Managing Director of MKD International Inc. Mr. Klatt was asked by BWI to conduct an investigation following the alleged discriminatory comments on October 22 and to report his findings to BWI. The applicant has requested BWI and Brendan Wood to disclose all correspondence the respondents have had with corporate clients about the applicant and her allegations and has requested Thomas Klatt to provide the recordings made of all meeting and interviews he held related to his investigation as well as the transcripts of all these recordings.
31These two RFOPs are denied. The requests are premature in that they do not conform to the Tribunal’s rules for disclosure. The applicant may make these requests if required through a RFOP(s), after the parties have exchanged their lists of arguably relevant documents.
A Personal Respondent’s RFOP to be Removed as a Respondent
32Erik Hansen, an employee of BWI, requests that he be removed as a personal respondent arguing the Application does not disclose facts that could reasonably give rise to a finding of discrimination against him and that there no compelling reasons to continue the Application against him. Mr. Hansen submits that he was not present at three of the four meetings of concern to the applicant in October 2009 and that there are only two references to him in the Application both of which he denies. The first is that he ridiculed the applicant for wearing sunglasses in the office and that he improperly removed or reassigned work from the applicant. Mr. Hansen argues these issues are not central to the applicant’s allegations and that he had no supervisory responsibility over the applicant and had no role in the termination of her employment Mr. Hansen contends that he should be removed as a personal respondent as the applicant is not seeking a financial remedy against him but rather against the corporate respondent who has the ability to respond to or remedy any Code violation if liability is established.
33The applicant opposes this request. She contends that Mr. Hansen was present at the time the offending comment was made on October 22 and took no action. She states that his is a managing director of BWI and did, in some instances, direct her work. She states that he was unduly critical of her work and did have a role in the termination of her employment. She maintains that BWI has not explicitly indemnified Mr. Hansen and that it is open to the Tribunal to make a finding that he violated the Code and require him to pay damages particularly in regard to his alleged harassing comments about her wearing sunglasses.
34The Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31, identifies a number of factors to be considered when considering whether to remove a personal respondent . They are:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
35I have considered the applicant and Mr. Hansen’s submissions in light of the factors and have concluded that Mr. Hansen should not be removed as a personal respondent. I am satisfied that that most of Mr. Hansen’s alleged conduct can be considered in keeping with his job function and as such would be conduct for which the corporate respondent could be deemed liable under the Code if found to violate the Code. However, there is the further issue of Eric Hansen’s alleged comments about the applicant wearing dark glasses in the office. In my view the nature of these alleged comments are such that, if found to be true, the Tribunal could order a remedy specifically against Mr. Hansen notwithstanding that the applicant identified that she was only seeking a remedy against the corporate respondent. Consequently Mr. Hansen remains named as a respondent.
Personal Respondents’ RFOPs to Dismiss the Application and to Require the Applicant to Desist from Disseminating Information about the Application
36The seven personal respondents have requested in two separate RFOPs that the Application be dismissed as an abuse of process arguing, in part, that the applicant has engaged in a deliberate and calculated campaign to disseminate and distribute false and inflammatory allegations against the individual respondents that are not relevant to any alleged breach of the Code. In the alternative the personal respondents request an order directing the applicant to cease and desist from publishing, disseminating, or distributing information relating to this application to any person or entity who is not a party without obtaining prior leave from the Tribunal.
37The RFOP asking that the Application be dismissed is denied. While the applicant has attempted to engage a broad range of third parties into the Tribunal process and to broaden the issues to be considered as part of her Application I do not find that this warrants the Application being dismissed as an abuse of process at this time. The appropriate step, in my view, is to set out how the Application should now proceed based, in large measure, on the decisions made in this Interim Decision so that there can be a fair, just and expeditious resolution of this matter.
Directions to the Parties
38This matter has been complicated by the fact that the parties have had a dispute that extends beyond the allegations raised in the Application and that this further dispute has “spilled over” into the Tribunal’s process. In order to ensure that the Application can proceed to be considered on its merits the Tribunal reiterates that the issues raised in the statements of claim, defence and counterclaim related to materials posted on the internet are not issues that will be addressed by the Tribunal in its consideration of the Application. The parties should prepare their cases accordingly.
39The applicant’s RFOP’s regarding collecting of information, particulars and documents from third parties have been denied. In the event that the applicant wishes to seek production or make any other requests from any other party and/or person, pursuant to the RFOP process, she shall identify the same within 14 days of the completion of the exchange of arguable relevant documents pursuant to Rule 16. The Tribunal further directs that any such RFOP (and supporting documents) be filed with the Tribunal with copies of the RFOP (and supporting documents) to the respondents only. The Tribunal will consider any requests filed and may issue further directions regarding the same including scheduling a case management conference call and/or seeking submissions from any potential third party. The applicant is directed to not send copies of the RFOP or supporting materials to any third party until directed to do so by the Tribunal.
40The respondents have indicated a possible interest in mediation after the issuing of this Interim Decision. They are directed to advise the Registrar in writing within 7 days of the date of this Interim Decision as whether they are interested in mediation, with a copy to the applicant.
41I am not seized of this matter.
Dated at Toronto this 16th day of July, 2010.
“Signed by”
Eric Whist
Vice-chair