Hoberg v. National Hockey League, 2010 HRTO 1805

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Scott Hoberg

Applicant

-and-

National Hockey League, William Daly, Colin Campbell and Stephen Walkom

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: September 8, 2010

Citation: 2010 HRTO 1805

Indexed as : Hoberg v. National Hockey League

WRITTEN SUBMISSIONS BY

Scott Hoberg, Applicant ) Ann Burke, Counsel

National Hockey League, ) Christopher Riggs and William Daly, Colin Campbell, ) John-Paul Alexandrowicz, and Stephen Walkom, Respondents ) Counsel )

1This is an Application made under s. 53(3) of the Ontario Human Rights Code, dated December 29, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 25, 2006.

2The purpose of this Interim Decision is to address submissions filed by the parties on the following three issues: (1) the relevance and admissibility of the proposed evidence of Pat Dapuzzo and Dean Warren; (2) a request for the proposed evidence of Mr. Dapuzzo and Brian Wisener to be given by teleconference; and (3) the applicant’s request for further production of documents.

Proposed evidence of Mr. Dapuzzo and Mr. Warren

3The applicant was employed as a referee by the respondent National Hockey League (“NHL”) and officiated professional hockey games at the American Hockey League (“AHL”) level. The applicant alleges that he experienced discrimination because of disability arising out the alleged failure of the NHL to accommodate an injury that he sustained in a game on October 7, 2005 and the subsequent termination of his employment on April 19, 2006.

4The hearing in this matter commenced on July 19, 2010. In accordance with the Tribunal’s Rules of Procedure for Transitional Applications (the “Transitional Rules”), the parties were required to file a list of witnesses and a brief statement summarizing each witness’ expected evidence. The applicant filed this material in accordance with the Rules, including a brief statement of the proposed evidence of Mr. Dapuzzo and Mr. Warren.

5It is proposed by the applicant that Mr. Dapuzzo, a long-time linesman with the NHL until he suffered a serious injury in February 2008, would say that there was pressure to return to work notwithstanding injuries because it was generally believed that absences would negatively affect an official’s standing in relation to work assignments and his career. It is proposed that he would say that he and other officials did not disclose injuries suffered in games and did not submit injury reports because of the fear that it would negatively impact their employment. Mr. Dapuzzo also would say that it appeared that supervisors had been told never to disclose anything about an official’s performance, and did not teach or counsel officials on how to improve their performance. Mr. Dapuzzo also would testify about certain reprisals that it is alleged he and others experienced as a result of their support for the applicant.

6It is proposed by the applicant that Mr. Warren, a long-time NHL referee, would testify about an injury he suffered in a game on December 31, 2003 and the pressure exerted on him to return to work the next day before his injury had healed. Mr. Warren would say that he did so because of fear of reprisal by the NHL. It also is proposed that Mr. Warren would testify about the NHL’s practice regarding verbal post-game evaluations given by supervisors as compared to the written reports subsequently produced by the NHL. While not in the witness statement submitted in advance of the hearing, submissions received from the applicant indicate that it also is proposed that Mr. Warren would give evidence that it is commonly understood among officials that the NHL had a concern about games lost due to injury and preferred officials with no lost time due to injury, as a result of which officials did not report their injuries. It also is proposed that Mr. Warren would testify about the practice of the National Hockey League Officials Association (“NHLOA”) in relation to the filing of grievances.

7In advance of the hearing, I issued a Case Assessment Direction dated July 6, 2010 raising an issue as to the relevance and admissibility of the proposed evidence from these two witnesses, and particularly whether this evidence qualifies as similar fact evidence or is relevant and admissible on some other basis or whether this evidence is in the nature of inadmissible character evidence or is otherwise not relevant or inadmissible.

8As the hearing on July 19, 2010 was taken up with hearing the evidence of Dr. Gary Talpos and much of the applicant’s evidence in chief, I invited the parties to file written submissions on this issue in the intervening period prior to the next scheduled hearing date.

9The applicant takes the position that he is not relying upon the evidence of these two witnesses as similar fact evidence, but rather as evidence in support of his own testimony that he felt pressured to return to work following his injury and that he feared reprisal from the NHL if he took the full time required to recover. The applicant submits that it is anticipated that the respondents will argue that he was the author of his own misfortune by failing to make the NHL aware of the full impact of his injury and by failing to take the time required to fully recover, and that evidence regarding his state of mind and why he did what he did is relevant to this proceeding. As there are significant issues of credibility that will need to be determined in this case, the applicant submits that he is entitled to call evidence in support of his state of mind and the general or commonly held belief by officials that their employment would be negatively impacted if they reported injuries or took too much time off due to injury.

10It is not at all clear to me the extent to which the applicant’s state of mind will be legally relevant to the issues that I need to decide in this proceeding. While I have heard this evidence as part of the background and chronology of events, it seems to me that the more legally significant questions in this case will focus not so much on the applicant’s state of mind or personal beliefs, but on whether the respondents actually failed to accommodate his injury or whether his injury was a factor, directly or indirectly, in the decision to terminate his employment.

11In any event, I also am not satisfied that there is a sufficient link or connection between the proposed evidence of these two witnesses and the applicant’s own state of mind or beliefs. It is not asserted by the applicant that information obtained by him from these two proposed witnesses at the relevant time in the 2005-06 season formed the basis of his belief at that time. Rather, as I understand it, the applicant and these two witnesses all are having regard to an alleged general or commonly held belief among officials that the NHL discouraged injury reports or time off due to injury. At this level of generality, I would not find this evidence helpful to the matters I need to determine in this case and find that it is not relevant or admissible.

12In my view, this kind of evidence about general or commonly held beliefs is really tantamount to inadmissible character evidence, inasmuch as I would be hearing from these witnesses that the NHL had a general or commonly believed character of discouraging injury reports or time off due to injury. While the applicant submits that this is not the purpose for which this evidence is being tendered, I find that the prejudice associated with such character evidence would greatly outweigh the probative value, if any, of such evidence. I also find that admitting such evidence could potentially lengthen the hearing and be unfair to the respondents, as they would be compelled to respond in some fashion to this amorphous evidence about general or commonly held beliefs.

13While the applicant takes the position that the proffered evidence is not being tendered as similar fact evidence, he nonetheless made submissions on its admissibility as similar fact evidence in the alternative. I accept the applicant’s submission that the rule regarding the admissibility of similar fact evidence is more relaxed in a human rights proceeding than in a criminal proceeding: see Sinclair v. London (City), 2008 HRTO 48. However, even in this context, I do not find that the proposed evidence of these two witnesses would qualify as similar fact evidence. It is not proposed that Mr. Dapuzzo provide any specific evidence that would qualify as similar fact evidence, but rather that he would provide general evidence about the fear of negative repercussions that he and other officials are alleged to have experienced, which I already have ruled is not relevant or admissible in the context of this proceeding.

14With regard to Mr. Warren, his proposed evidence is that he suffered an eye injury in a game on December 31, 2003 and was told by the NHL trainer to officiate the next day’s game notwithstanding his injury, because in the trainer’s opinion he would be fine. Mr. Warren would say that he did officiate the next day’s game because of his fear of reprisal by the NHL if he failed to do so, and that his performance was affected by the injury. There is no indication that Mr. Warren experienced any other repercussions arising out of this injury or that his employment was terminated or otherwise negatively affected as a result of this incident. In my view, this proposed evidence is not sufficiently similar in nature to the allegations raised by the applicant, and would run the risk of unduly prolonging the hearing as the respondents would be required to present a wholly separate set of evidence to respond to Mr. Warren’s allegations. As a result, I find that any probative value to be derived from Mr. Warren’s proposed evidence is outweighed by the prejudicial impact on the proceeding. For these reasons, I find that this proposed evidence is neither relevant nor admissible.

15With regard to the balance of Mr. Dapuzzo’s evidence, I do not find that it is either relevant or admissible. With regard to his proposed evidence that NHL supervisors “appeared to have been told never to disclose anything about an official’s performance”, no foundation is provided for what appears to be opinion evidence and I fail to see the relevance of this proposed evidence to the issues before me. With regard to his proposed evidence that supervisors “did not teach or counsel officials on how to improve their performance”, I do not find that this evidence is relevant to the issues before me. With regard to Mr. Dapuzzo’s proposed evidence about reprisals alleged to have been experienced by himself and other officials as a result of supporting the applicant, this evidence is not within the scope of the proceeding before me. While these allegations may have provided a basis for Mr. Dapuzzo and perhaps others to have filed their own reprisal complaints, these are not allegations capable of being raised by the applicant in this proceeding. I find that this evidence is not relevant or admissible.

16With regard to the balance of Mr. Warren’s proposed evidence, I find that his proposed evidence regarding the filing of grievances by the NHLOA is not relevant. The matter of the NHLOA and its failure to file a grievance was raised by the applicant in a section of the complaint where the Commission asks whether the complainant has a union, filed a grievance, and if so what happened. At that time, this information was relevant to the Commission’s discretion to determine whether a matter could or should more appropriately have been dealt with under another Act (s. 34(1)(a) of the former Code). Under s. 45.1 the current Code, there is no longer a question of whether a matter “could” or “should” have been dealt with elsewhere, but only if the substance of the Application “has been” dealt with in another proceeding. While in the Response filed with the Commission, the respondents did respond to the information set out in the complaint filed by the applicant, this does not serve to make such information relevant to the issues that I need to determine in this proceeding. While I am prepared to hear evidence from the applicant regarding his efforts to deal with the termination of his employment, I find that evidence regarding the NHLOA’s practices relating to the filing of grievances is not relevant to this proceeding.

17Finally, with regard to Mr. Warren’s proposed evidence that “there was a practice in the NHL for supervisors to give written evaluations inconsistent with the verbal evaluations given directly to officials after games”, there is no doubt that there is an issue before me arising from the applicant’s evidence relating to an alleged inconsistency between the verbal post-game evaluations that he received and the written evaluations tendered by the respondents. The extent to which this evidence will be relevant to the issues I need to determine is not yet entirely clear to me. I understand that the applicant is alleging that his injury affected his work performance, and that this directly or indirectly became a factor in the termination decision. I do not understand it is being alleged that because of the applicant’s disability, the NHL supervisors wrote up more negative performance evaluations than their verbal post-game evaluations as a pretext to lay the groundwork for the applicant’s dismissal. Indeed, even if such an allegation were being raised, Mr. Warren’s proposed evidence that there was a “practice” for NHL supervisors to given written evaluations inconsistent with verbal post-game evaluations would support a conclusion that such practice, if found to be supported by the evidence, had nothing to do with the applicant’s disability. Accordingly, I do not find that Mr. Warren’s proposed evidence on this point is relevant to the issues before me.

18Accordingly, for the above reasons, I find that the proposed evidence of Mr. Dapuzzo and Mr. Warren is not relevant or admissible, and I will not hear from these witnesses.

Request for teleconference

19The applicant made a request for the evidence of Mr. Dapuzzo, if found relevant and admissible, and Mr. Wisener to be given by teleconference. The applicant then stated that with respect to this request, he was withdrawing his request to call this evidence by videoconference. It is not clear to me whether the applicant is still requesting that evidence be called by teleconference, as neither party made detailed submissions regarding this request.

20I already have ruled that I will not hear Mr. Dapuzzo’s evidence. With regard to Mr. Wisener, his proposed evidence is restricted to a game that he officiated with the applicant on January 27, 2006 where he states that he was informed by the applicant about his injury and that it was affecting his stride, and that the personal respondent Mr. Walkom and an NHL supervisor, Mr. Newel, entered the dressing room after the game and to Mr. Wisener’s knowledge Mr. Walkom was aware of the applicant’s injury.

21To the extent that this proposed evidence bears on any issues of credibility, I do not believe that my assessment of credibility would be substantially affected if I heard this evidence by teleconference, and I am prepared to hear Mr. Wisener’s evidence in this manner if that is still how the applicant wishes to proceed. If so, all that is required is for Mr. Wisener to be available to be reached by telephone on the next hearing day.

Request for production

22On June 19, 2010, the applicant made a request for further production by the respondents, some of which the respondents have agreed to provide. I will address the production issues that remain in dispute.

23The applicant has requested “injury reports filed by officials in all seasons from 2001 to 2006” and “any NHL documents relating to the NHL’s accommodation of officials in all seasons from 2001 up to and including 2006”. The applicant states that these documents are requested in order to determine whether it was in fact a normal practice for officials to formally report muscle pulls or minor ailments and injuries similar to inguinal hernias (the injury suffered by the applicant), what accommodation process was applied to injured officials, and how the NHL actually accommodated individuals who required time off work or had limitations or restrictions upon their return to work. In my view, these requested documents are not relevant to the issue before me, which is whether the respondents failed to properly accommodate the applicant’s disability or whether his disability was a factor in the termination decision. Further, expanding the hearing to include an inquiry into injuries experienced by others and how they were accommodated would unduly expand the scope and length of this proceeding. I do not order that this material be disclosed. While the applicant in his reply submissions offered to restrict the scope of the information sought, I do not find that the information with these restrictions would be any more relevant or any less prejudicial to the hearing process.

24The applicant has requested “copies of all grievances filed by the NHLOA since 2001”. For the reasons already discussed above in relation to Mr. Warren’s proposed evidence, I find that this material is not relevant to this proceeding and decline to order that it be disclosed.

25The applicant also raised in his submissions a request for production of “information concerning promotions to the NHL in the period from 2001 to 2006”. The basis upon which this production is sought is in anticipation of an argument from the respondents that officiating assignments to Calder Cup games is reliable evidence of the NHL’s assessment of an official’s skill level, and the applicant expects that the information sought will show that certain individuals who were assigned to Calder Cup games were subsequently terminated or demoted and that those who weren’t were subsequently promoted.

26I have direct evidence before me regarding the NHL’s assessment of the applicant’s performance as an official, and I will need to assess the credibility of this evidence in the context of all of the evidence I hear in this proceeding. More significantly, the issue before me under the Code is whether the applicant’s disability was a factor in the respondents’ assessment of the applicant’s performance, either directly or indirectly. In my view, evidence regarding Calder Cup assignments in relation to some assessment of the performance of other officials is of little assistance to me in making the determinations that I need to make in this proceeding. I do not find that the information sought is relevant to the issues before me, and decline to order production.