Zarandi v. National Cellular, 2011 HRTO 1286

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Zarandi

Applicant

-and-

National Cellular Inc. o/a National Wireless

Respondent

INTERIM dECISION

Adjudicator: Mary Truemner

Date: July 5, 2011

Citation: 2011 HRTO 1286

Indexed as: Zarandi v. National Cellular

1This Application alleges that the respondent discriminated against the applicant with respect to employment on the basis of sex and sexual harassment contrary to sections 5(1) and 7(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing is set to commence on July 11, 2011. The respondent yesterday made a Request for a dismissal or an adjournment on the basis that the applicant has not yet filed a witness statement of what she will say when she testifies at the hearing, nor adequate summaries of what her witnesses will say contrary to the Tribunal’s Rules of Procedure.

Background

2According to the Rules, the summaries were required to be delivered to the respondent and filed with the Tribunal by May 27, 2011. By that date, the applicant had filed a witness list indicating that seven witnesses were expected to testify on her behalf. The applicant did not file a witness statement for herself but did file witness statements for her seven proposed witnesses. Those witness statements do not fully comply with Rule 17 because they lack details about the particular evidence that each proposed witness will give to address the applicant’s allegations of discrimination and harassment.

3The respondent wrote to the applicant on May 31, 2011 requesting that proper summaries be provided by June 3, 2011.

4On June 7, 2011, the respondent wrote to the Tribunal requesting that the Application be dismissed for the reason that proper summaries had not been filed.

5By June 27, 2011, the applicant had not responded to the respondent’s correspondence, and the respondent wrote again to the Tribunal requesting that the Application be either dismissed or adjourned.

6The Tribunal issued a Case Assessment Direction (“CAD”) on June 28, 2011, directing that the applicant immediately file amended witness statements that fully comply with Rule 17. The CAD directed that failure to file immediately may result in the Tribunal’s refusal to allow certain evidence.

7To date, the applicant has still not filed adequate witness statements for the people she listed on her witness list, although she today filed a summary of her own testimony which is reflected of her Application.

Decision

8The hearing will proceed on July 11, 2011, and the applicant will be permitted to testify given that the summary of facts in the Application generally reflects the evidence that she will give. (See C.D. v. Wal-Mart Canada, 2010 HRTO 426). The respondent will have an opportunity at the hearing to object to parts of the applicant’s testimony that it may consider irrelevant or unfair in keeping with the Tribunal’s Rules.

9With respect to the applicant’s other witnesses, the applicant must deliver to the respondent and file with the Tribunal amended witness statements that fully comply with Rule 17 and the criteria as described in the CAD of June 28, 2011. She must do so by 3:00 p.m. July 7, 2011. If the amended witness statements are delivered and filed as directed by that time, then the hearing will be adjourned after the applicant’s testimony in chief to a future date in order that the respondent have an opportunity to continue their cross-examination of the applicant with the benefit of having had time to review the intended evidence of her other witnesses.

10The exchange of witness statements prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to structure the hearing. If the amended witness statements are not delivered and filed as directed by 3:00 p.m. on July 7, 2011, then the applicant may not be permitted to adduce evidence through these other witnesses, and the hearing will proceed after the applicant’s evidence with the respondent’s witnesses.

11Given the temporal proximity to the hearing, any other preliminary matters will not be dealt with until its commencement.