Step v. Mazin Furniture Industries, 2010 HRTO 2314

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Step

Applicant

-and-

Mazin Furniture Industries Limited and Gerald Mazin

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: November 19, 2010

Citation: 2010 HRTO 2314

Indexed as: Step v. Mazin Furniture Industries

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated June 23, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on September 7, 2005.

2The applicant alleges that he experienced discrimination in employment because of disability contrary to sections 5 and 9 of the Code, when his employment was terminated shortly after he returned to work from sick leave. The hearing in this matter is scheduled to proceed on November 29, 2010.

3The purpose of this Interim Decision is to address the Request for Order filed by the respondents on November 10, 2010, seeking the following orders: (1) to extend the time for the respondents to comply with their pre-hearing obligations to November 19, 2010; (2) to require the applicant to comply with his pre-hearing obligations; and (3) to remove the personal respondent as a party to this proceeding.

Request re extension of time for respondents to comply with pre-hearing obligations

4By letter dated March 5, 2010, the Tribunal sent confirmation of the hearing to the parties setting November 29, 2010 as the hearing date and establishing deadlines for the parties to comply with their pre-hearing obligations under the Rules. The applicant was required to make disclosure of all arguably relevant documents and file any statement of additional facts and requested remedies by October 15, 2010, and the respondents were to make disclosure and file any statement of additional facts and response to remedy by October 30, 2010. All parties were to file a list of witnesses, a description of what each witness would say and the documents they intended to rely upon at the hearing by November 9, 2010.

5By letter dated October 25, 2010, at the respondents' request, the Tribunal granted extensions to the parties to comply with their pre-hearing obligations, with the applicant to file his material by October 29, 2010 and the respondents to file their material by November 15, 2010. All parties were to file their witness statements and documents by November 15, 2010.

6As stated above, the Request for Order was filed by newly retained counsel for the respondents on November 10, 2010 seeking a brief extension to file their pre-hearing materials to November 19, 2010. In my view, the respondents had ample time following the issuance of the Tribunal's March 5, 2010 letter to seek and retain counsel and to comply with their pre-hearing obligations by the date set by the Tribunal. That having been said, the respondents are directed to serve and file all pre-hearing materials by no later than November 19, 2010, and any issue as to the admissibility of this material shall be addressed at the hearing on November 29, 2010.

Request re applicant's compliance with pre-hearing obligations

7By letter dated November 3, 2010, the applicant wrote to the Tribunal stating that he already had sent all of the material for the hearing to the Tribunal with his claim, and that he has no additional information or documents to add to those already submitted.

8The only documents filed by the applicant with the Tribunal were his Application and a copy of the underlying complaint filed with the Commission. From the face of his complaint, the applicant has medical notes that he says he sent to the respondents with regard to his absence in June 2005. The respondents' Response also makes reference to absences in February and April 2005, and issues relating to the applicant's work performance in May and June 2005. If the applicant is in possession of any of documents relating to his absence in June 2005, his prior absences in February and April 2005, and any work performance issues, then any such documents must be disclosed to the respondents in accordance with the Tribunal's Rules.

9It may be that the applicant provided some documents to the Commission in relation to the complaint he filed in September 2005. However, those documents are in the possession of the Commission, and not the Tribunal. Further, the Commission's practice was not to disclose documents to the respondents. Accordingly, even if the applicant previously had provided documents to the Commission, it is his obligation to disclose these documents to the respondents and to file them with the Tribunal. The applicant is hereby ordered forthwith to disclose to the respondents and file with the Tribunal a copy of all arguably relevant documents in his possession, and in any event shall disclose and file such documents by no later than 4:30 p.m. on Wednesday, November 24, 2010. As with the respondents, any issue as to the admissibility of any such documents will be addressed at the hearing.

10In his November 3, 2010 letter, the applicant states that his only witnesses will be his psychiatrist and his family doctor. However, the applicant has not provided to the respondents or to the Tribunal any description of what these witnesses would say in their evidence at the hearing.

11I am proposing to bifurcate the hearing in this matter, so that the hearing on November 29, 2010 will deal only with the question of whether the respondents violated the applicant's rights under the Code, and any issue as to remedy would be addressed at a later time and only if a violation of the Code were found. If any party objects to this manner of proceeding, they shall so advise the Tribunal by no later than 4:30 p.m. on Wednesday, November 24, 2010.

12Without the benefit of any witness statement, I can only imagine that the evidence of the applicant's psychiatrist is directed at the impact on him of the alleged discrimination. If that is the only purpose for which this individual is being called to give evidence, then the psychiatrist does not need to appear at the November 29 hearing and no witness statement needs to be filed at this time. On the other hand, if it is intended that the psychiatrist is going to provide evidence regarding the reason for the applicant's absence on sick leave in June 2005, then the applicant is ordered to provide a witness statement setting out what this individual's evidence will be and also is required to produce a copy of any notes or records maintained by this individual in relation to his June 2005 absence. If, and only if, the psychiatrist is giving evidence about the June 2005 absence, the applicant is ordered to file this individual's witness statement and to make his best efforts to obtain, disclose and file a copy of the psychiatrist's notes or records by no later than 4:30 p.m. on Wednesday, November 24, 2010.

13With regard to the applicant's family doctor, and again without the benefit of any witness statement, I can only imagine that the purpose of calling this individual to testify is to provide evidence as to the reason for the applicant's absence in June 2005 and perhaps also to provide evidence regarding the impact of the alleged discrimination on him. At this time, the applicant need only provide a witness statement setting out this individual's evidence regarding his absence in June 2005 and disclose and file any notes or records in this individual's possession pertaining to such absence. The applicant is ordered to file this individual's witness statement and to make his best efforts to obtain, disclose and file a copy of the family doctor's notes or records by no later than 4:30 p.m. on Wednesday, November 24, 2010.

14If for some reason, the applicant cannot obtain, disclose and file a copy of the foregoing medical records by the established deadline, he shall do so as soon as possible and in any event shall have these doctors come to the hearing with their notes and records (once again, the psychiatrist is only required to attend on November 29 if this individual is speaking to the June 2005 absence).

15As previously stated, any issue as to the admissibility of these individuals' evidence and their notes and records may be addressed at the November 29 hearing.

16Finally, the applicant has not filed any statement of additional facts, and also has not filed a witness statement regarding his own evidence. While the complaint does set out the applicant's evidence regarding the June 2005 absence, this document does not provide any evidence in reply to the allegations in the respondents' Response, particularly with regard to the applicant's alleged prior absences in February and April 2005 and any work-performance issues raised with him in May or June 2005. The applicant is hereby ordered to provide to the respondents and file with the Tribunal a statement of any evidence he proposes to provide in reply to the respondents' Response by no later than 4:30 p.m. on Wednesday, November 24, 2010. Any issue as to the admissibility of such evidence may be addressed at the November 29 hearing.

Request re removal of personal respondent

17The factors to be considered regarding a request for removal of a personal respondent have been set out by this Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31, and need not be repeated here. As with most cases, the issue comes down to whether there is any compelling reason 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 in the proceeding.

18In this case, the personal respondent's involvement in this matter is not simply as a figurehead for the corporation or as signatory on a termination letter. From the respondents' own Response, it is clear that he was the person who made the decision to terminate the applicant's employment, for reasons that include the applicant's alleged failure to comply with company policy during the June 2005 absence. Whether or not this aspect of the reasons for the termination of the applicant's employment results in a finding of discrimination because of disability in contravention of the Code is a matter for determination at the hearing. However, it is clear to me that the personal respondent's decision to terminate and the reasons for that decision will be the central issue in this proceeding. As a result, in my view, it is not appropriate to order removal of the personal respondent as a party to this proceeding.