Pinkney v. Datex Billing Services, 2010 HRTO 695

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerrie Pinkney Applicant

-and-

Datex Billing Services, Jim Dawson and Lori Dawson Respondents

INTERIM DECISION

Adjudicator: Ailsa Jane Wiggins Date: March 29, 2010 Citation: 2010 HRTO 695 Indexed as: Pinkney v. Datex Billing Services

APPEARANCES BY

Kerrie Pinkney, Applicant ) On her own behalf Datex Billing Services, Jim Dawson and Lori Dawson, Respondents ) Christopher Lloyd, Counsel

1This Application was filed on April 27, 2009, pursuant to section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleges that her right to be free of discrimination and harassment in the workplace in respect of sex has been infringed by the respondents and that she has been subjected to sexual solicitation and reprisal.

2The hearing commenced on January 26, 2010 and is scheduled to resume on May 3 and 5, 2010. I heard testimony from the applicant and two of her witnesses, Rose Peters and Bruce Pinkney. The purpose of this Interim Decision is to address case management issues that arose at the hearing.

The Closure Report

3One of the documents filed by the applicant on January 7, 2010 is a "New Path Youth and Family Services, Partner Abuse Program Closure Report" dated July 11, 2005, signed by Karen MacFarlane. Ms. MacFarlane's name and a short witness statement appeared on the witness list filed by the applicant on December 7, 2009. Ms. MacFarlane is a counsellor at a program attended by the applicant. The Closure Report, more than half of which was blacked out, was submitted by the applicant because she learned that Ms. MacFarlane might not be available to testify at the hearing on January 26, 2010.

4On January 7, 2010, the applicant also filed a revised witness list adding two more witnesses, Rose Peters and Elaine MacFarlane, both described as counsellors at My Friends House – Women's Community Services.

5At the commencement of the hearing, counsel for the respondents asked that the Closure Report not be admitted into evidence if the author, Karen MacFarlane, was not going to testify, and if she was going to testify and rely on her report, that the entire report be disclosed.

6Karen McFarlane was not available and did not testify at the hearing.

7Under the circumstances, as the author of the report was not available and the redacted portions are so extensive that the nature of the report is unclear, the Closure Report will not be admitted as evidence and will not form part of the record.

The Article on Sexual Harassment

8Counsel for the respondents also objected that an article filed by the applicant on December 7, 2010 entitled "The Sexual Harassment of Uppity Women" was hearsay, a statement by a person other than witness. It is an article by an academic who has no connection with the facts in dispute in this case. It does not appear to me to be relevant, and even if it was, I would afford it little weight. It is more in the nature of an authority rather than evidence, something that can be raised by the applicant in her closing argument. I find that the paper is not admissible as evidence.

Criminal Record Report

9At the end of her testimony, the applicant asked counsel for the respondents to provide her with personal respondent, Jim Dawson's date of birth so that she could conduct a criminal record check. Counsel for the respondents refused to provide the information and expressed concern that the applicant would put on the record that Mr. Dawson had a criminal record. I did not understand the applicant to say that he had, but rather that she wanted to conduct a search to see if he did. Even if she had the personal information required to conduct a criminal record check, she could not do so without Mr. Dawson's participation and consent and I am not prepared to order that he obtain and file a criminal record report.

10A criminal record report would constitute character evidence. The Tribunal has the discretion to consider character evidence in accordance with sections 8 and 15 of the Statutory Powers Procedure Act, provided that the disclosure of character evidence is made in advance of the hearing. However, character evidence is generally inadmissible in civil proceedings in Canada and the Tribunal has applied that principle. In Modi v. Paradise Fine Foods Ltd., 2005 HRTO 25, the Tribunal held at para. 3:

Character evidence is generally inadmissible in civil proceedings in Canada, and the Human Rights Tribunal of Ontario (and its predecessor, the Ontario Board of Inquiry (Human Rights Code)) has applied that principle: Rubio v. A-Voz Portuguese Canadian Newspaper Ltd., [1997] O.H.R.B.I.D. No. 10; Chacko v. Transpharm Canada Inc. (c.o.b. Toronto Institute of Pharmaceutical Technology), [2001] O.H.R.B.I.D. No. 11. In contrast, similar fact evidence is more readily admissible. Classification of the nature of the relevant evidence therefore tends to be critical.

11Similar fact evidence, evidence that a party whose behaviour is impugned has previously acted in a manner similar to that currently alleged, is admissible in certain circumstances. Here the applicant did not suggest that the personal respondent had acted in a similar manner previously, or that his criminal record would reflect that he had acted in a similar manner previously. The purpose of the report, assuming that it showed that Mr. Dawson had a criminal record, would be to show evidence of "bad character".

Witnesses

12At the conclusion of the January 26 hearing day, I reviewed the applicant's witness list and determined that I did not need to hear from any more of those on her witness list except for the applicant's former co-worker, Andre Petijean, who also appears on the respondents' witness list. I do not need to hear from Karen Witt or Laura Somers.

13The applicant describes Ms. Witt as her closest friend. While Ms. Witt has visited the applicant's workplace and met the Dawsons, she did not witness or have any involvement in any of the alleged incidents. In other words, she would only be testifying about the respondent, Jim Dawson's character in order to bolster the applicant's credibility. Her evidence would amount to character evidence and any probative value would be outweighed by its prejudicial effect.

14The applicant describes Ms. Somers as one of her closest friends. Ms. Somers works for the Dawsons as a nanny to their five children. In her witnesses list, the applicant indicates that Ms. Somers will testify to the poor treatment Ms. Somers received from the Dawsons in her capacity as their children's nanny. She did not witness or have any involvement in any of the alleged incidents. The relationship between parents and their children's nanny is often very different from other employer- employee relationships as the workplace is the parent's home. Like Ms. Witt, Ms. Somers would only be testifying about the respondent, Jim Dawson's character in order to bolster the applicant's credibility. Ms. Somers' evidence would amount to character evidence and any probative value would be outweighed by its prejudicial effect.

15Of the three counsellors listed on the applicant's witness list, the applicant called only one, Rose Peters. Karen MacFarlane was unable to attend the hearing. Elaine MacFarlane no longer works with the organization that put on the program attended by the applicant and she did not attend the hearing. Ms. Peters worked with Karen MacFarlane and Elaine MacFarlane at the program attended by the applicant. Ms. Peters testified regarding the applicant's attendance at the program and her interaction with the applicant. Ms. Peters testified from her memory and did not refer to the Closure Report in her testimony. Having heard from Ms. Peters, I do not need to hear from Elaine MacFarlane or Karen MacFarlane, even if they are available when the hearing resumes.

16When the hearing resumes, I will hear testimony from the personal respondents, Andre Petijean, and Jack Peterson, who was present at social events attended by the applicant and personal respondents and at a meeting with the applicant, her father Bruce Pinkney, and Lori Dawson, which occurred after the applicant's employment was terminated by Jim Dawson.

Orders

17The Tribunal makes the following orders:

a) the Closure Report is not admissible and will not form part of the record;

b) the paper entitled "The Sexual Harassment of Uppity Women" is not admissible as evidence;

c) any documentation or testimony regarding Jim Dawson's criminal record, if any, is not admissible;

d) the evidence of the witnesses, Karen Witt and Laura Somers, is not admissible and they are not permitted to testify at the hearing; and,

e) the evidence of Elaine MacFarlane and Karen MacFarlane is not required and they are not permitted to testify at the hearing.