Thomas v. IATSE Local 461, 2011 HRTO 1737

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rose Marie Thomas

Applicant

-and-

IATSE Local 461, Shaw Festival Foundation, Domenico Marcone,

William Talbot, Margaret Molokach, Douglas Ledingham,

David Edwards, Archie MacKenzie, and Don Finlayson

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: September 21, 2011

Citation: 2011 HRTO 1737

Indexed as: Thomas v. IATSE Local 461

written submissions by

Rose Marie Thomas, Applicant ) Self-Represented

Shaw Festival Foundation ) Julie O’Donnell, Counsel

and Don Finlayson, Respondents )

IATSE Local 461, Domenico Marcone, )

William Talbot, Margaret Molokach, ) Ron Lebi, Counsel

Douglas Ledingham, David Edwards, )

and Archie MacKenzie, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against her in employment and in membership in a vocational association based on disability and sex. She also alleges reprisal or threat of reprisal. The respondents deny the allegations of discrimination.

2The purpose of this Interim Decision is to determine Requests for Orders During Proceedings (“Requests”) filed by the applicant on December 15, 2010, and on August 8, 2011. In these Requests, the applicant seeks to add a number of additional respondents to the Application, amend the Application, and obtain disclosure of certain information and documents.

3For the reasons that follow, the request to add additional respondents and the request to amend the Application are denied. The request for production and particulars is allowed in part.

OVERVIEW OF PROCEEDINGS

4The applicant was employed by the Shaw Festival Foundation (“Foundation”) and worked in various roles related to the production of plays at the Shaw Festival. While employed by the Foundation, the applicant was a member of IATSE 461 (Niagara). Pursuant to the collective agreement between the Foundation and IATSE 461, IATSE 461 supplies union members in good standing to perform work as required by the Foundation.

5In essence, the applicant alleges that the respondents failed to provide a harassment-free workplace, failed to respond appropriately to her complaints of sexual harassment, and failed to accommodate her disability by implementing or enforcing an appropriate smoking policy. She also alleges that she was reprised against and that, among other things, her membership in IATSE 461 was revoked in retaliation for complaints that she had filed.

6The Application was filed on April 24, 2009. It is a very lengthy document and includes a number of detailed allegations. The respondents have filed detailed Responses to the Application.

7The Tribunal has addressed a number of preliminary issues raised by the applicant, notably, in Interim Decision 2010 HRTO 1748, the Tribunal granted the applicant’s request to amend the Application to seek additional remedies and denied the applicant’s request to add IATSE Local 461 Health Benefits Trust as a respondent.

8In June 2010, the parties participated in a mediation facilitated by the Tribunal. They were unable to resolve the issues between them.

9On December 15, 2010, the applicant filed a further Request in which she seeks to add four additional respondents. She is also seeking to make significant amendments to the Application and to obtain production of certain documents, records, and information.

10On March 24, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to file more clear and concise submissions regarding her Request. Specifically, the Tribunal directed the applicant to indicate what Code-related allegations are made against each proposed respondent and where, in the Application or the proposed amendments, those allegations are contained. The applicant has filed additional materials in response to the CAD.

11On August 8, 2011, the applicant filed a further Request, seeking to add Matthew D. Loeb as a respondent to the proceedings.

12The respondents and prospective respondents have had an opportunity to respond to both of the applicant’s Requests and to the information she provided in response to the CAD.

13The respondents Don Finlayson and the Shaw Festival Foundation (“Foundation respondents”) oppose the request to amend the Application because they say the proposed amendments would broaden the scope of the Application significantly at a relatively advanced stage in the proceedings. Further, they say that the proposed amendments have little relation to the allegations contained in the original Application. In regards to production, these respondents state that they do not have any of the information or documents sought by the parties.

14The other respondents and prospective respondents (collectively, “Union respondents”) object to the addition of more parties and to the production requested by the applicant. They argue that there is no nexus or connection between the original Application and the prospective respondents and proposed amendments. The Union respondents state that the proposed amendments are improper and merely attempt to broaden the scope of the Application.

ANALYSIS

Request to add parties

15In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal explained that the following three considerations are relevant to deciding whether to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

16As the Tribunal explained in Smyth, supra, at para. 12:

The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

17At the third stage of the analysis, the effect of adding respondents on the hearing process is significant. The Tribunal has, for example, refused to add a proposed respondent where it would result in delay to the hearing process and would not advance the remedial purposes of the Code (Haynes v. Ottawa-Carleton District School Board, 2008 HRTO 26) and where it was not made in a timely manner and would result in delay and prejudice to the hearing process (Sinclair v. London (City),2008 HRTO 11).

18In this case, the applicant has sought to add three further locals of IATSE (822-Toronto, 129-Hamilton, and 58-Toronto); Cheryl Batulis, the business agent and president of IATSE Local 822; and Matthew D. Loeb, International President of IATSE.

19In response to the Tribunal’s CAD directing her to advise what allegations are made against each proposed respondent that could support a finding that the proposed respondent violated the Code, the applicant argues:

a. That Cheryl Batulis disclosed personal information about the applicant, commented on her medical and harassment issues, and failed to respond appropriately to the allegations of harassment and requests for accommodation the applicant made regarding her work environment in Toronto.

b. That IATSE Local 822 failed to respond appropriately to allegations of harassment and requests for accommodation the applicant made regarding her work environment in Toronto; that it failed to discipline the members of its executive; that it failed to report further alleged harassment by Marcone (which I understand occurred while the applicant was employed in Toronto); that it failed to take appropriate steps to shield the applicant from harassment while she was employed in Toronto and restricted her ability to participate in a pay equity issue by (among other things) refusing to provide her with documents and information and/or refused to do so in a timely manner. The applicant also alleges that members of IATSE Local 822 executive harassed and intimidated the her, threatened reprisal measures for making complaints and for disclosing information, and failed to follow Local 822’s privacy policy.

c. That IATSE Local 58 failed to provide an environment free of sexual harassment, that it failed to respond appropriately to the applicant’s allegations of sexual harassment; and that it failed to return a phone call from Local 822.

d. That IATSE Local 129 failed to respond appropriately to the applicant’s allegations of harassment and her complaints regarding smoking; and that it is responsible for the alleged harassment by Marcone.

e. That Matthew Loeb has not updated IATSE International’s constitution to ensure that sexual harassment complaints are dealt with confidentially, that complainants are treated with dignity, and that it reflects current Canadian law; and that he did not act to ensure that a sign in the Toronto workplace was removed and that grievances were advanced.

20I note that some of the proposed allegations against the proposed respondents relate to information exchanged at the mediation. At the outset of the mediation, the parties entered into a confidentiality agreement. They agreed that information exchanged at the mediation cannot properly form the basis of allegations against any of the parties. Accordingly, in making my decision, I have not considered allegations relating to the mediation or the information exchanged during the course of the mediation.

21The applicant appears to have made allegations that could bring at least some of the proposed respondents within the scope of the Code. Notwithstanding this, I cannot conclude that it would be fair or appropriate to add the proposed respondents at this stage of the proceedings.

22First, the connection between the proposed respondents and the allegations contained in the original Application is limited. The allegations in the original Application relate principally to the applicant’s work with the Foundation and the issues that arose with IATSE 461 during her employment there. The allegations against the proposed respondents (contained in the proposed amendments to the Application) relate to incidents in other workplaces. In essence, the applicant alleges that similar issues of harassment and failure to accommodate continued in different workplaces and with different locals of IATSE after her employment with the Foundation and her membership with IATSE 461 ended.

23In the circumstances of this case, I am not satisfied that there is sufficient connection between the original Application and the allegations against the proposed respondents to warrant granting the applicant’s Request. I am mindful that, given the number of additional proposed respondents and the nature of the allegations against them, adding the proposed respondents would significantly broaden the scope of an already complex Application. It would also add to the duration of proceedings, result in further delays, and inject several new parties to a proceeding that has reached a relatively advanced stage.

24Second, there was a significant delay in seeking to add these additional respondents. The Application was filed in April 2009. The Requests currently at issue were filed approximately 20 months and 28 months after the Application. A mediation has taken place, and the Tribunal has rendered a number of procedural rulings. The applicant has already had an opportunity to amend her Application and the Tribunal has already considered (and denied) a request to add an additional respondent. I do not think it fair or appropriate to add the proposed respondents at this stage of the proceedings.

25Accordingly, the Request to add additional respondents is denied.

Request to amend the Application

26In determining the applicant’s Request to amend the Application, I have considered the stage at which the Request is made, the nature of the proposed amendments, and whether any apparent prejudice would result.

27The amendments proposed by the applicant arise at a relatively advanced stage of the proceeding. In essence, they are a series of allegations against the proposed respondents. For the reasons set out above, I have concluded that it would not be fair or appropriate to add these respondents in the circumstances. As the proposed amendments do not materially relate to the parties to this Application, it is not appropriate to allow them in the circumstances.

28Accordingly, the Request to amend the Application is denied.

Request for production

29The applicant has requested an order requiring the respondents to disclose:

a. All documents related to the applicant’s membership application in 2005; the minutes and audiotape recording of an October 20, 2008 meeting, the list of attendees at the meeting, all evidence forwarded to the International President and/or his representatives regarding IATSE 461’s decision to terminate the applicant’s membership whether or not these documents refer to the applicant by name;

b. Information regarding oral inquiries made by IATSE 461 and the Foundation regarding “two employment decisions” challenged by the applicant;

c. Why IATSE members “have proposed to charge” the applicant for pursuing a human rights complaint;

d. A copy of smoking and harassment policies and the “risk assessment plan with regard to union violence”;

e. A copy of a security video of Marcone smoking at the stage door in November 2010 as well as information about whether he was under anyone’s supervision at the time; and

f. A copy of a harassment complaint filed by Stephanie McCracken.

30The main issue in determining a production request is whether the requested documents or particulars are “arguably relevant” to the issues in dispute in the proceeding. In paragraphs 12 and 13 of McKay v. Toronto Police Services Board, 2009 HRTO 1220, the Tribunal wrote:

The threshold test for disclosure at the pre-hearing stage of a human rights proceeding is “arguable relevance”, which requires that there be some relevance between the sought-after material(s) and the subject matter of the complaint. The party seeking production must demonstrate a nexus between the information or document sought and the facts or issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation), 2002 CanLII 46508.

The first step in determining what is relevant is the identification of the cause of action’s facts and the surrounding substantive law: Neusch, supra. A nexus may be established if the sought-after information goes to prove or disprove a fact or issue in dispute or provides an inferential link to support a theory of the case or line of defence. If the materials sought meet this threshold standard of “arguable relevance”, the Tribunal must next consider whether there any other issues or concerns, such as privilege or privacy, which may require a determination of terms and conditions upon which production may be ordered. Further, a finding that a document is arguably relevant for production does not mean that such information will necessarily be admissible as evidence at the hearing on the merits.

31In my view, the following documents and information are arguably relevant to the proceeding and must be disclosed by the respondents:

a. all documents, records, and communications regarding the termination of the applicant’s membership in IATSE Niagara, including minutes, notes, and recordings of meetings, whether or not they refer to the applicant by name;

b. the respondents’ smoking and harassment and other arguably relevant policies, if any, and any documents, records, videos, recordings or communications regarding the enforcement of those policies in 2007 and 2008; and

c. all documents, records, and communications regarding any complaints made by the applicant regarding harassment or smoking and all documents, records, and communications regarding the respondents’ response or reaction to those complaints whether or not they refer to the applicant by name.

32The applicant has not provided any basis for concluding that the remainder of the information and documents she seeks is arguably relevant to these proceedings.

33The applicant’s request for production and particulars is granted in part. Within three weeks of the date of this Interim Decision, the respondents are required to deliver copies of the documents and records listed in para. 31 to the applicant.

SUMMARY OF CONCLUSIONS AND NEXT STEPS

34The Tribunal concludes as follows:

a. The applicant’s Request to add respondents is denied;

b. The applicant’s Request to amend the Application is denied;

c. The applicant’s Request for disclosure is allowed in part. Within three weeks of the date of this Interim Decision, the respondents must deliver to the applicant copies of the documents and records listed in para. 31, above.

35The matter will be scheduled for three days of hearing. The Tribunal may provide direction regarding the conduct of the hearing in a Case Assessment Direction.