Munroe v. Padulo Integrated, 2010 HRTO 2366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dean Munroe

Applicant

-and-

Padulo Integrated Inc. and Kamel Mikhael

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: November 29, 2010

Citation: 2010 HRTO 2366

Indexed as: Munroe v. Padulo Integrated

1This is an Application filed on August 24, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Tribunal commenced the hearing of this matter on August 3, 2010. Two further days of hearing are scheduled for December 2 and 3, 2010. The respondents and applicant have both filed Requests for Orders During Proceeding, the respondents on August 27, 2010 and the applicant on November 12, 2010.

REQUEST TO REMOVE PERSONAL RESPONDENT

3The respondents request that Kamel Mikhael be removed as a respondent to this Application. They rely on the Tribunal’s decisions on the issue of naming personal respondents, and submit that the applicable factors favour removing Mr. Mikhael.

4The applicant opposes the Request on the basis that the evidence so far shows that Mr. Mikhael personally decided to terminate the applicant’s employment with the corporate respondent and further, that this respondent may be characterized as a “directing mind” of the corporate respondent. Further, the applicant submits that the continued participation of Mr. Mikhael as a party will be important to the applicant’s ability to achieve an adequate remedy. The applicant states that given the assertions about corporate restructuring and downsizing, there may be an issue as to the ability of the corporate respondent to remedy any Code infringement.

5The Tribunal will defer the determination of the respondents’ request pending the completion of the hearing. The personal respondent is the contact for the corporate respondent and has been in attendance during the hearing. He is one of three anticipated witnesses. The Tribunal sees no compelling reason to determine the issue at this stage and on the basis of the written submissions. The parties may provide submissions on whether remedial orders if any should extend to the personal respondent as part of their final arguments on the Application.

REQUEST FOR FURTHER PRODUCTION

6This hearing was scheduled to be heard on its merits on August 3, 2010. At the outset of the hearing, without prior notice, the applicant made a request for further production of documents. The documents requested were numerous, and included payroll and employment records for all the employees of the corporate respondent as well as payroll and employment records for “Yew & Bamboo Inc.” and contractual agreements between the corporate respondent and Citibank, Citigroup or Citicards and between “Yew Bamboo Inc.” and these entities. The applicant sought production of these records covering the time period January 2008 to December 2009.

7In denying the request at the hearing, I indicated the following:

The applicant has known about the position of the respondent since the Response was sent in January, and certainly since the respondent provided its documents in March.

It was incumbent on the applicant, if he believed that the documents provided did not tell the fully story relevant to his Application, to identify what additional documents he believed should be disclosed.

In considering the request for additional production, I have to balance not only the prejudice to the applicant from having to proceed with the case without those documents, but the prejudice to the respondent, who is present to have this case heard today, has prepared for the case with an understanding of the case it has to meet, based on the pleadings and documentary production to date, and has an interest in the expeditious resolution of this case.

In all the circumstances, it would not be fair, just or expeditious to grant the production request.

8For reasons unrelated to the request for further production, the hearing was adjourned following the evidence-in-chief of the applicant. The applicant’s current Request seeks production of a narrower group of documents.

9As is evident from the Tribunal’s ruling, the decision to deny further production on August 3 was related to the impact that requiring further production would have on the hearing, as well as the potential for expanding the scope of issues to be addressed during the hearing. The Tribunal anticipated that the parties would be ready to call all their evidence on the issue of liability, and that the hearing on this issue would likely conclude on August 3. In fact, the corporate respondent requested and was granted an adjournment of the hearing following the applicant’s examination-in-chief, and two more days of hearing were scheduled.

10The corporate respondent opposes the further production request on the basis that the request has been previously denied. However, given the change in the hearing schedule, the Tribunal’s concerns about the prejudice to the hearing process no longer apply. Further, the applicant has narrowed his Request for further production.

11In this case, the corporate respondent asserts that the applicant was laid off for bona fide business reasons, related to downsizing as a result of the loss of business. The records the applicant seeks are the contractual agreements between the corporate respondent and named clients which were the primary source of the applicant’s work at this employer, and contracts of employment and statements of duties for other employees performing work under these contracts for the period June 1, 2007 to February 16, 2009 (the time from the applicant’s sick leave to his layoff). The applicant provides the names of two employees for whom these documents are sought if the Tribunal finds the Request too broad.

12Having regard to the allegations in the Application and the position of the corporate respondent in its Response, I am satisfied that the documents sought are arguably relevant to the issues in this Application and direct that they be produced. Given that the hearing is scheduled to resume in three days, the Tribunal finds it appropriate to direct that the respondents have the documents available at the outset of the hearing on December 2, 2010.

13For further certainty, the documents which I order to be produced on December 2, 2010 are the following:

• The contractual agreement regarding the provision of services by the corporate respondent to “Citi Cards Canada” and/or “Citibank” and/or “Citi Financial” for the period June 1, 2007 to February 16, 2009;

• Contracts of employment and statements of duties for employees who performed work related to the “Citi Cards Canada” and/or “Citibank” and/or “Citi Financial” account with the corporate respondent for the period June 1, 2007 to February 16, 2009.