Peter Cattan v. CompuCom Canada Co., 2011 HRTO 321

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Cattan Applicant

-and-

CompuCom Canada Co. (formerly Getronics Canada Inc.), Colin Turnbull and Teresa Edwards Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: February 15, 2011 Citation: 2011 HRTO 321 Indexed as: Cattan v. CompuCom Canada

WRITTEN SUBMISSIONS

Peter Cattan, Applicant ) Claire Giroux, Representative CompuCom Canada Co. ) Colin Turnbull and Teresa Edwards, ) James LeNoury, Counsel Respondents )

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 1, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on September 13, 2005.

2The hearing in this matter commenced on January 5, 2011 and is scheduled to continue on March 7, 2011. The purpose of this Interim Decision is to address certain issues that arose at the hearing on January 5, 2011, regarding the scope of the subject-matter of the complaint which forms the basis of this Application and the admissibility and relevance of certain documents that the applicant proposes to rely upon.

3Following the hearing on January 5, 2011, the parties were given an opportunity to file written submissions on these issues, which they have done.

Scope of Complaint

4Pursuant to s.53(5) of the Code, a transitional application filed under that statutory provision must be “with respect to the subject-matter of the complaint” that had been filed with the Commission. In addition, Rule 12.3 of the Transitional Rules states that s.53(5) applications “must be based on the subject matter of the complaint or amended complaint filed at the Commission”. While Rule 12.4 contemplates an ability to amend the complaint, this is expressly limited by the words “having regard to Rule 12.3”. The Tribunal’s case law with respect to transitional applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission: DeFreitas v. Ontario Public Services Employees Union, 2010 HRTO 281.

5The complaint as filed by the applicant is dated September 13, 2005. The complaint alleges discrimination in employment because of disability contrary to sections 5(1) and 9 of the Code, arising out of an injury the applicant states that he suffered while in the course of his work on December 24, 2004. The general thrust of the complaint is that the applicant believes that his employment was terminated on March 21, 2005 because of his injury and his needs for accommodation that arose from his injury. The complaint itself contains no details about the injury on December 24, 2004 other than recording that the applicant was injured on that date, and contains no details regarding the reporting of the injury to the applicant’s supervisor, the personal respondent Colin Turnbull, and Mr. Turnbull’s response when the applicant was at work on January 4, 2005. No allegation is made in the complaint that Mr. Turnbull made derogatory comments about the applicant’s injury on January 4, 2005.

6As part of the Tribunal’s transitional process, an applicant is permitted to file a statement of additional facts for the purpose of setting out any further material facts that the applicant intends to rely upon at the hearing in support of his complaint. The applicant filed a statement of additional facts on September 29, 2010. In this statement of additional facts, the applicant provided the details of his accident and injury on December 24, 2004 and also addressed communications between the applicant and his supervisor on January 4, 2005. No allegation is made in the statement of additional facts that Mr. Turnbull made derogatory comments about the applicant’s injury on January 4, 2005.

7In the course of giving his evidence in chief at the hearing on January 5, 2011, the applicant testified that Mr. Turnbull had made derogatory comments about his injury on January 4, 2005 and provided details as to the nature of these alleged comments. In cross-examination, respondents’ counsel reviewed with the applicant that no such allegation had been made either in the complaint or in his statement of additional facts. While the applicant conceded this, he made reference to a document that he referred to as an “addendum” that he states he filed with the Commission together with his complaint and he also made reference to the document that he had filed with the Commission in reply to the respondents’ response to his complaint, both of which make at least some reference to Mr. Turnbull having made derogatory comments on January 4, 2005.

8The first issue that arises out of the evidence given by the applicant is whether his allegation that Mr. Turnbull made derogatory comments on January 4, 2005 falls within the subject-matter of the complaint. I find that it does not. The complaint makes no mention of this allegation. Neither is it mentioned in the statement of additional facts. While there is reference to alleged derogatory comments in the addendum and the reply filed with the Commission, these documents do not form part of the complaint as filed with the Commission. Further, the fact that alleged derogatory comments were referenced in these documents does not explain why no such reference was made to this allegation in the statement of additional facts. The applicant’s submission that he believed that all documents sent to the Commission would have been transferred to the Tribunal does not explain the absence of any reference to the alleged derogatory comments in the statement of additional facts, as that document contains much other information that also is contained in documents filed with the Commission.

9This is not a technical deficiency as submitted by the applicant. It is a fundamental question of the fairness of this proceeding and the entitlement of the respondents to know the allegations that they are being required to respond to. Having been given the opportunity both in the complaint and in the statement of additional facts to set out the material facts that form the basis of the allegations against the respondents, it is not fair or appropriate for the applicant to raise in his evidence at the hearing an allegation that Mr. Turnbull made derogatory comments on January 4, 2005, some 6 years earlier, and to expect the respondents to be in a position fairly to respond to such an allegation.

10Accordingly, I find that the allegation that Mr. Turnbull made derogatory comments on January 4, 2005 is not within the scope of the subject-matter of the applicant’s complaint.

Admissibility and relevance of documents

11This raises the issue of the admissibility and relevance of the two documents that the applicant seeks to tender into evidence before me, namely the addendum that he states was sent to the Commission along with his complaint (the “addendum”) and his letter dated December 5, 2005 in reply to the respondents’ response to his complaint (the “reply”).

12In light of my ruling that the allegation that Mr. Turnbull made derogatory comments on January 4, 2005 about the applicant’s injury is not within the scope of the subject-matter of the complaint, these documents are not relevant to prove an allegation that is not before me. In any event, these documents would represent prior consistent statements which generally are not admissible to prove the truth of statements given in evidence.

13However, in the course of the respondents’ cross-examination, counsel questioned the applicant as to why, if Mr. Turnbull had made the derogatory comments alleged, no reference was made to such an allegation in the complaint or in the statement of additional facts. In my view, the clear implication of counsel’s questions was that the applicant’s allegation that Mr. Turnbull had made derogatory comments had been invented or fabricated at some later time. When viewed in this context, a document that shows that the allegation was raised at an earlier time is relevant to the applicant’s credibility and I am prepared to admit the reply into evidence for this limited purpose.

14I am prepared to admit the reply and not the addendum for the following reasons. The applicant had an obligation to disclose to the respondents a copy of all arguably relevant documents in his possession. The applicant prepared a book of documents to comply with this obligation, which included the reply but not the addendum. It is no answer for the applicant to say that he thought that the Commission’s file had been transferred to the Tribunal, as the documents disclosed by the applicant include a number of documents that would also have been in the Commission’s file. At the commencement of the hearing, I similarly disallowed the respondents from filing additional documents that had not previously been disclosed, to which the applicant objected. In any event, I already have the reply which shows that an allegation that Mr. Turnbull made derogatory comments on June 4, 2005 was raised at least as early as December 5, 2005, which is sufficient for the limited purpose for which I am prepared to admit this document.

15The applicant’s reply dated December 5, 2005 is marked as Exhibit 10 to this proceeding.