HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Orith Benjamin
Applicant
-and-
PTC Accounting & Finance Inc.,
Brenda Kilger and Karen Eyers
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Benjamin v. PTC Accounting & Finance Inc.
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 4, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on January 21, 2008.
2The applicant alleges that she experienced discrimination and harassment in employment because of disability, marital status and family status contrary to ss. 5 and 9 of the Code, arising out of events that occurred in 2007 and culminated in the termination of her employment in December 2007.
3The purpose of this Interim Decision is to address the respondents’ request for removal of the personal respondents. I will also deal with various case management issues.
Request for removal of personal respondents
4The principles relating to the removal of personal respondents are stated in Persaud v. Toronto District School Board, 2008 HRTO 31 as follows:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist 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 or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
5In this case, the respondent company also is alleged to be liable for the conduct at issue in this proceeding, and the respondent company has accepted its deemed or vicarious liability for any conduct by the personal respondents. There also, in my view, is no real issue as to the respondent company’s ability to respond to or remedy the alleged Code infringement.
6As with most cases involving a request for removal of personal respondents, the question comes down to whether there is any compelling reason to continue the proceeding as against the personal respondents. This depends, of course, upon a review of what specific allegations are made in the Application as against each personal respondent and whether the nature of those allegations provide a compelling reason to continue the proceeding as against that individual personally. As a result, I will review the allegations made as against each of the personal respondents at issue.
7Brenda Kilger is stated in the applicant’s complaint to have been a Recruitment Manager for the respondent company who was hired shortly before the applicant’s return to work in March 2007. It is alleged that Ms. Kilger on a number of occasions questioned the state of the applicant’s mental health and raised concerns about the applicant’s status as a single mother. It is alleged that these concerns became factors in Ms. Kilger’s assigning of less work to the applicant, which detrimentally affected her income and ultimately led to the termination of her employment.
8I appreciate that the statements and actions attributed to Ms. Kilger are disputed facts. These are credibility issues that will need to be determined at the hearing. However, in my view, it is clear from the face of the complaint that the applicant has made allegations relating directly to Ms. Kilger’s personal conduct and actions which, if true, may provide a basis for personal liability under the Code and which form part of the central matters at issue in this proceeding. Accordingly, I am not satisfied that it would be appropriate to remove Ms. Kilger as a personal respondent at this stage of the proceeding.
9Karen Eyers (now Coutu) is the Director of Human Resources at the respondent company. She is alleged to have encouraged the applicant to take a less stressful position at the respondent company due to the applicant’s “mental breakdown”, to have improperly shared confidential medical information about the applicant with Ms. Kilger, to have failed to respond sufficiently to the applicant’s complaints about Ms. Kilger, and to have played a role in the decision to terminate the applicant’s employment. The applicant alleges that this was due to Ms. Eyers finding out that the applicant had been hospitalized due to stress.
10Once again, while I appreciate that these are disputed facts which will need to be determined at the hearing, the applicant’s complaint raises allegations relating directly to Ms. Eyers’ personal conduct and actions which, if true, may provide a basis for personal liability under the Code and which form part of the central matters at issue in this proceeding. Accordingly, I also am not satisfied that it would be appropriate to remove Ms. Eyers as a personal respondent at this stage of the proceeding.
11Accordingly, the respondents’ request for removal of the personal respondents is denied.
Case management
12The hearing in this matter is scheduled to proceed on October 14, 2011.
A) Disclosure Of Remedies And Documents
13In accordance with the Tribunal’s Rules, by June 13, 2011, the applicant was required to deliver to the respondents a statement of any additional facts she intends to rely upon at the hearing, a description of the remedies she seeks, and a copy of all arguably relevant documents in her possession (except where privilege is claimed).
14On June 1, 2011, the applicant delivered a statement of additional facts. However, in relation to the description of the remedies she is seeking, the applicant states only that she is seeking the maximum that this Tribunal gives. That is not a sufficient description of remedies to satisfy the requirement under the Rules.
15I note that in the complaint, the applicant requested compensation for loss of earnings and anything else that she is entitled to. That too is not a sufficient description of the remedy the applicant is seeking in this matter.
16If the applicant is seeking compensation for lost earnings, she needs to identify the approximate amount of her lost earnings and the period of time for which she is asserting this claim. If the applicant has earned other employment income during the period for which she is claiming lost income, she needs to disclose to the respondents the amount of this other employment income she has earned and provide copies of documents relating to such income, including T-4s, income tax returns and notices of assessment for the taxation years in which she is claiming lost income. If she is asserting such a claim, the applicant also would need to disclose any and all documentation relating to her efforts to secure alternate employment following her termination.
17If the applicant is asserting a claim for compensation for injury to her dignity, feelings and self-respect, she needs to indicate the amount of any such claim. In addition, if there are any documents upon which she intends to rely in support of such a claim, these need to be disclosed to the respondents.
18If the applicant is seeking any other remedy from this Tribunal, she needs to indicate specifically what that is. Information about the remedies available from this Tribunal can be found in the Applicant’s Guide at p. 11 which is available on the Tribunal’s website.
19With regard to disclosure of documents, the applicant states only that the respondents have “copies of everything from the last mediation”. That is not sufficient to satisfy the applicant’s responsibilities under the Rules. In the Tribunal’s Guide to Preparing for a Hearing before the HRTO (“Hearing Guide”) at pp. 2-3, the following is stated in relation to the obligation to disclose all arguably relevant documents:
The purpose of the HRTO’s requirements for disclosure of documents is to ensure a fair and expeditious process. Each party has a right to know what the other side’s case is about. Disclosure helps the parties prepare for the hearing. If the parties have fully disclosed their positions, documents and witnesses, the hearing runs more expeditiously and fairly, and no one is taken by surprise.
. . . Arguably relevant documents are documents that have some relevance and connection to an issue or issues in dispute in the application, including the remedy being asked for. These include documents that the party intends to use at the hearing and documents that the party does not intend to use but are otherwise relevant to the case.
20The applicant needs to properly disclose all arguably relevant documents to the respondents. Simply asserting that these were provided at mediation is not sufficient. If there are any documents the applicant intends to rely upon at the hearing or if she has any documents in her possession that are relevant to the issues raised in this proceeding or to the remedies she is seeking, then these documents need to be disclosed. Pursuant to the Tribunal’s Rules, if a document has not been properly disclosed in accordance with the parties’ obligations, the Tribunal may decide not to receive it into evidence at the hearing or rely upon it for the purpose of making a decision.
21I appreciate that in the respondents’ materials dated June 24, 2011, the respondents have taken the position that the applicant should not be permitted to rely upon any documents other than those disclosed by the respondents or seek any remedy in this proceeding. I do not agree. With regard to the admissibility of documents, I have broad discretion under Rule 18.5 of the Tribunal’s Rules of Procedure for Transitional Applications as to whether I decide to refuse to allow a party to rely upon a document not disclosed in accordance with the Rules. In addition, pursuant to Rule 3.4, I also have broad discretion to decide to allow a party to present evidence or make representations about a fact or issue not included in the statement of additional facts and remedies, if I am satisfied that there would be no substantial prejudice or undue delay to the proceeding.
22In the circumstances of this case, which include that the applicant no longer has legal representation, I am prepared to afford the applicant one further opportunity to provide a proper description of the remedies that she seeks and to make proper disclosure of all arguably relevant documents in her possession, including all documents that she intends to rely upon at the hearing, any other documents in her possession relating to the issues raised in this proceeding, and all documents relating to the remedies that she seeks. The applicant is hereby directed to serve this material on respondents’ counsel and file this material with the Tribunal within 14 calendar days of the date of this Interim Decision.
B) Witnesses
23I note that with her statement of additional facts, the applicant has included a long list of witnesses with contact information. It is not the Tribunal’s responsibility to get in contact with witnesses put forward by the parties. Rather, it is the parties’ responsibility to ensure that all relevant witnesses that they intend to rely upon appear to give evidence at the hearing. As stated in the Tribunal’s Hearing Guide at pp. 4 – 6:
Witnesses are people who can provide evidence (information) about an issue or fact that is relevant to the dispute between the parties. For example, a witness may have been present at a relevant event and may have information about what they saw or heard. Witnesses can have other types of personal knowledge or information. For example, a witness may know about an important document, such as an organization’s policy, and may be able to explain how it was developed, applied in the past and how it relates to the events at issue in the application.
Generally, witnesses are required to focus on giving information about issues and facts rather than offering their opinion about a claim.
Each party is responsible for making sure that a witness the party wishes to call to give evidence, shows up on the dates scheduled for hearing the application.
If a party is concerned that a witness may not attend to give his or her evidence at the hearing, or if the party wants added assurance that a witness will come to the hearing, it can summon the witness. It must do so by contacting the HRTO to get a signed Summons to Witness (Form 24). Sometimes a witness wants a Summons in order to be able to be absent from work.
The Summons will be signed by a HRTO adjudicator but will otherwise be blank. The party must complete the Summons to Witness by filling in the following information:
The name of the witness;
The address of the witness;
The date, time and location of the hearing;
Any documents that the witness must bring with him/her;
The date the summons was completed; and,
The name, address and telephone number, and Law Society of Upper Canada Number (for lawyers and paralegals) of the person issuing the summons.
Delivery of the Summons to the witness is the responsibility of the party who wants to summon the witness. The Summons must be served on (given to) the witness in person. The witness is entitled to be paid $50/day for each they are needed to attend and a travel allowance ($3.00/day if the hearing is in the city or town in which the witness lives; if the hearing is within 300 km of where the witness lives, $0.24/km for the distance between the witness’ residence and where the hearing is being held; and if more than 300 km, the minimum return air fare plus $0.24 each way from the witness’ home to the airport and the airport to the hearing). The witness is entitled to get their attendance money, in cash, at the time they are served with the Summons. A witness who is summoned but does not attend at the hearing, or produce the documents or things specified in the Summons, without lawful excuse, may be subject to contempt proceedings in the Superior Court of Justice.
24I note that in the applicant’s witness list, she has included the names of 11 “candidates” who are stated to be able to provide a “reference” on the applicant’s behalf. This is generally considered to be in the nature of character evidence, which is not admissible at the hearing. Unless any of these witnesses have specific evidence to provide regarding any of the issues raised in this proceeding, such as things that they personally heard or observed, then their evidence would not be relevant or admissible. The applicant also will want to consider the relevance and significance of the evidence of other witnesses she has included on her list, in order to decide whether she wishes to takes steps to ensure their attendance at the hearing to testify in support of her case.
c) Proposed Bifurcation Of Hearing
25As is common with transitional proceedings, I propose to bifurcate or separate the hearing in this matter, such that at the initial stage of the hearing, I would deal only with the issue of whether the applicant’s rights under the Code have been violated and not with any issue regarding remedy if a violation were to be found (with the exception that I would hear evidence regarding any claim for compensation for injury to dignity, feelings and self-respect if the applicant does not intend to rely upon any medical evidence to support such a claim). At a separate and later stage, and only if I first found a violation of the Code, I would establish a process to deal with any issue regarding remedy (unless the remedy is limited to an award of compensation for injury to dignity, feelings and self-respect for which the applicant does not rely upon any medical evidence, in which case I would simply assess the amount of any such compensation in my decision on liability).
26All parties shall advise the Tribunal and the other parties if they consent to the bifurcation of the hearing in this manner within 14 calendar days of the date of this Interim Decision. If any party objects to the bifurcation of the hearing, they shall so advise the Tribunal and the other parties together with submissions as to why they object within this same time period. If any party wishes to file submissions in response to any such objection, they shall do so within a further three business days.
ORDER
27For the foregoing reasons, I hereby make the following order:
a) Within 14 calendar days of the date of this Interim Decision, the applicant is directed to serve on respondents’ counsel and file with the Tribunal the following material:
a proper description of the remedies that she seeks in accordance with paragraphs 16 to 18 above; and
all arguably relevant documents in her possession, including all documents that she intends to rely upon at the hearing, any other documents in her possession relating to the issues raised in this proceeding, and all documents relating to the remedies that she seeks;
b) Within 14 calendar days of the date of this Interim Decision, all parties shall advise the Tribunal and the other parties if they consent to the bifurcation of the hearing. If any party objects to the bifurcation of the hearing, they shall so advise the Tribunal and the other parties together with submissions as to why they object within this same time period. If any party wishes to file submissions in response to any such objection, they shall do so within a further three business days.
Dated at Toronto, this 25^th^ day of August, 2011.
“Signed by”
Mark Hart
Vice-chair