HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Humphries
Applicant
-and-
General Motors of Canada Limited
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Humphries v. General Motors of Canada
APPEARANCES BY
Heather Humphries, Applicant ) Richard Parker Q.C. and ) Andrew Anthony, Counsel
General Motors of Canada Limited, ) David Bannon, Counsel Respondent )
1This Interim Decision is written to address various issues that arose at the hearing in this matter on November 10, 2010.
Removal of personal respondents
2On consent of the parties, all personal respondents have been removed as parties to this proceeding, and the title of proceeding has been amended accordingly.
Late disclosure of documents
3At the hearing, the respondent submitted documents that had not previously been disclosed to the applicant or filed with the Tribunal. Counsel for the respondent stated that these documents had just been provided to him that morning. On further inquiry by me, it appears that the respondent’s Labour Relations Manager had been preparing for the hearing by reviewing the documents previously filed by the respondents, and believed that there were additional documents in existence, particularly in relation to the qualifications and certification of some of the 19 employees at issue in this proceeding. He directed a subordinate to conduct a more extensive search for these documents, which resulted in these further documents being found.
4I was told that previously searches had been conducted in the employee’s personnel files which did not include these documents. The more extensive search extended to a search for a file maintained by an employee of the respondent who previously had been dealing with the issue raised in this proceeding in an internal process, and it is in this file that the additional documents were discovered. The Labour Relations Manager had been reviewing documents just last week in preparation for the hearing, and his subordinate had discovered the documents last Friday. The Labour Relations Manager was in Michigan on Monday and Tuesday of this week, which is why the documents were not given to counsel until this morning.
5There was one further document, which is a letter relating to employees hired into Tool & Die positions from the ACSYS plant, which I was told simply had been overlooked by the respondent when preparing its previous productions.
6I am not at all satisfied with the explanations offered by the respondent in this regard. Pursuant to the Tribunal’s Rules, it is the obligation of all parties to make disclosure of all documents in their possession that are arguably relevant to a matter at issue. On the face of the complaint dated February 22, 2006, it is apparent that the applicant was contesting the hiring of the 19 individuals into Tool & Die positions. That the respondent was aware of this is evidenced by the fact that it comprehensively responded to this allegation in the Response filed with the Commission.
7Further, in the Tribunal’s Interim Decision dated January 26, 2010, 2010 HRTO 177, it was made abundantly clear that there were only two remaining issues in this proceeding, one of which related to the hiring of the 19 individuals into Tool & Die positions in the period from November 2004 to July 2005. This was known to the respondent when the parties were given notice of the hearing in this matter by Tribunal letter dated May 31, 2010, which established a deadline of July 15, 2010 for the respondent to make disclosure of all arguably relevant documents.
8Along with the obligation to disclose necessarily goes a duty on a party to exercise reasonable diligence in ascertaining whether arguably relevant documents are in its possession. The question of the qualifications of the 19 individuals hired into the Tool & Die positions is not just relevant but central to the issues to be determined in this proceeding. Documents relating to the transfer of the 12 individuals from ACSYS into Tool & Die positions also are central to the issues. I find that, had the respondent exercised proper due diligence at the time for complying with its disclosure obligations by July 15, 2010, the documents that were brought forward only today would have been located and disclosed then. The time for the respondent to have reviewed its disclosures and realized that there were additional relevant documents was not in the week prior to the hearing, but in the 45 day period following the Notice of Hearing and prior to the date set for compliance with the respondent’s disclosure obligations. This clearly was not satisfactorily or appropriately done.
9Pursuant to Rule 18.5 of the Tribunal’s Rules of Procedure for Transitional Applications, I may refuse to consider or allow a party to rely upon any document at the hearing which has not been disclosed in accordance with the Rules. In addition, pursuant to Rule 3.3, where a party fails to deliver material to another party as required by the Rules, I may refuse to consider the material or may take any other action I consider appropriate.
10I have considered carefully whether I should refuse to allow the respondent to rely upon these documents in view of the lack of due diligence that has been displayed. However, I need to have regard to the guiding principle for the Rules, which is to ensure the fair, just and expeditious resolution of the merits of applications. As previously stated, these documents contain highly relevant evidence which goes to the heart of one of the central issues in the case. Having heard from the respondent’s Labour Relations Manager, I am satisfied that there is no issue as to these documents having been fabricated or deliberately concealed by the respondent. To exclude consideration of these documents would, in my view, impair my ability to make a just determination on the merits of the issues raised in this proceeding. Accordingly, I will not exclude these documents.
11In light of the late disclosure of these documents by the respondent, the applicant requested an adjournment of the hearing, which was granted on consent.
12I also considered whether I have the authority under Rule 3.3 or my general ability under the Statutory Powers Procedure Act to remedy an abuse of process to require the respondent to compensate the applicant for her costs, including her legal costs, thrown away today as a consequence of the respondent’s lack of diligence and late disclosure. Without ruling either way on whether I have such authority, I have decided not to make such an order at this time.
Case Management
13There are two issues before me in this proceeding: (1) whether the applicant experienced discrimination because of her sex in relation to men being placed in Tool & Die positions during the period from November 2004 to July 2005; and (2) whether the applicant experienced reprisal due to discipline imposed in May 2005 and February 2006, which she alleges was due to her having pursued internal human rights complaints at the respondent company.
14At the outset of the hearing and before the issue of late disclosure arose, I proposed a process for hearing the evidence in this matter and invited submissions from the parties in response. Having heard and considered the parties’ submissions, and as I have experienced counsel representing both parties to this proceeding, I am prepared to hear the evidence in the normal course, with the applicant presenting her evidence first and then being cross-examined, and with the respondent presenting its evidence afterwards. I will, however, ensure that the evidence from both parties remains focused on the two issues before me and I will ensure that the hearing is completed in an expeditious manner.
15I had proposed to bifurcate the hearing, so that I would first only hear evidence as to whether there was a violation of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in relation to the two issues before me, and then at subsequent time, and only if violation of Code were found, hear evidence in relation to remedy. As no party has objected to bifurcation of the proceeding, I order that the hearing be bifurcated.
16In order to ensure that this hearing proceeds in an expeditious manner, I require the parties to file additional materials in advance of the next hearing date. By no later than 40 calendar days prior to the next hearing day, the applicant shall serve and file a complete statement of all of her evidence regarding: (1) whether she believes that she should have been hired ahead of the three preferential hires into the Tool & Die positions, and, if so, why; (2) whether she believes that she should have been hired ahead of the four Letter 1 hires into the Tool & Die positions, and, if so, why; (3) whether she believes that she should have been hired ahead of the 12 ACSYS hires into the Tool & Die positions, and, if so, why; (4) why she believes that her qualification, certification and experience as a Mouldmaker should have been considered equivalent to or better than the Tool & Die qualifications, certifications or experience of the 19 individuals hired into the Tool & Die positions; (5) why she believes that the failure to hire her into one of the Tool & Die positions during the period from November 2004 to July 2005 was because of her gender; (6) all of her evidence relating to the incidents which led to discipline in May 2005 and February 2006; and (7) why she believes that this discipline was imposed in reprisal for her having pursued internal human rights complaints. By this time, the applicant also shall serve and file an indexed book containing the documents that she intends to rely upon when giving her evidence at the hearing.
17By no later than 20 calendar days prior to the next hearing day, the respondent shall serve and file a complete statement of all of the evidence of the witnesses it intends to call at the hearing. With regard to the evidence of the Labour Relations Manager, this statement shall include: (1) on what basis each of the three preferential hires (namely Michel Jarry, Steven Hnatiw and Rejean Laverdure) were hired into the Tool & Die positions, with specific reference to the collective agreement provisions or any other documents under which they were given preference, including where each employee came from, each of their Tool & Die qualifications, certifications or experience, and why each of them was entitled to preferential hiring; (2) on what basis each of the four Letter 1 hires (namely Martin Bujak, Ted Rubinstein, Tariq Khan and Gregory Strojwons) were hired into the Tool & Die positions, with specific reference to the collective agreement provisions or any other documents under which they were hired and an explanation of the process followed for Letter 1 hires, including where each employee came from, each of their Tool & Die qualifications, certifications or experience, and why each of them was entitled to be hired as a Letter 1 applicant; (3) on what basis each of the 12 ACSYS hires (namely Jason Luery, Donald Kinsley, Mark Murphy, Neville Slater, Nicholas Turkocio, Jason Chizen, John Martin, Steve Cook, Stefan Redlarski, Paul Stock, Patricia Martin and Steve Chinn) were hired into the Tool & Die positions, with specific reference to any documents under which they were given preference and the basis upon which they were given preference (in particular, my understanding from today is that they were hired solely on the basis that they were employed in Tool & Die positions at the ACSYS plant), including each of their Tool & Die qualifications, certifications or experience, and why each of them was entitled to preferential hiring; (4) why the applicant was not among the 19 individuals hired into Tool & Die positions during this period, and specifically why her qualification, certification and experience as a Mouldmaker was not considered equivalent to or better than the Tool & Die qualifications, certifications or experience of the 19 individuals hired into the Tool & Die positions.
18With regard to the evidence of the applicant’s former supervisor, his complete statement of evidence shall include: (1) all of his evidence relating to the incidents which led to discipline of the applicant in May 2005 and February 2006; and (2) any evidence in response to the applicant’s allegation of reprisal, including the extent of his knowledge of her internal human rights complaints at the times discipline was imposed.
19The respondent indicated at the hearing that it may call one other witness. If so, the respondent shall also serve and file a complete statement of this individual’s evidence by no later than 20 calendar days prior to the next hearing day.
20At the hearing, I directed the respondent to disclose to the applicant and file with the Tribunal the G790 forms issued upon assumption of the Tool & Die position for the following individuals: Michel Jarry; Neville Slater; Steve Cook; and Stefan Redlarksi. These documents shall be disclosed and filed within 14 calendar days of the date of this Interim Decision.
21The Tribunal will schedule two hearing days for this proceeding, and will provide notice to the parties in the normal course.
Dated at Toronto, this 17th day of November, 2010.
”signed by”______________
Mark Hart
Vice-chair