Byers v. Fiddick’s Nursing Home, 2011 HRTO 437

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Byers

Applicant

-and-

Fiddick’s Nursing Home Limited, Candace Lefebvre and Michael Fiddick

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 1, 2011

Citation: 2011 HRTO 437

Indexed as: Byers v. Fiddick’s Nursing Home

APPEARANCES

Linda Byers, Applicant ) Ron Bildfell, Counsel )

Fiddick’s Nursing Home )

Limited, Candace Lefebvre and ) Elizabeth Traynor, Counsel

Michael Fiddick, Respondents )

1In this Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination in employment on the grounds of disability and age, and reprisal. The hearing commenced in October 2010 with further hearing dates scheduled for March 9, 10 and 11, 2011.

2During the hearing, the Tribunal heard evidence from the applicant and her husband, Bev Byers, about four tape cassettes, which are labelled: Kate Toms, December 26, 2008 (“the Toms tape”); Candace Lefebvre, December 26, 2008 (“the Lefebvre tape”); Joyce Szusz, December 26, 2008 (“the Szusz tape”) and Pamela Fiddick, March 30, 2009 (“the Fiddick tape”). The tape cassettes were marked as exhibits at the hearing for identification purposes, and a transcript of the Toms tape was introduced as an exhibit. Further to the respondents’ production request for copies of the tape cassettes, the applicant had produced the tape cassettes previous to the hearing as well as transcripts for the Toms and Fiddick tapes. The parties agree that the Lefebvre and the Szusz tapes are blank.

3Following the evidence of Mr. Byers, the Tribunal raised the issue of the admissibility of four tape cassettes given that the respondents’ knowledge about the tapes seemed to be based upon seeing them at a Tribunal mediation held with a different member. The applicant, who was self-represented at the time, brought the tape cassettes to the mediation and showed them to the respondents. The Tribunal provided the parties with a copy of the Tribunal’s Confidentiality Agreement, which the parties had signed during their mediation .

4A Case Assessment Direction (“CAD”) dated November 1, 2010, directed the applicant to advise the Tribunal and the respondents if she objected to the admissibility of some or all of the tape cassettes at the hearing and if so to identify which tape cassette(s) to which the objection applied. The CAD stated that if the applicant objected to the admissibility of some or all of the tape cassettes, the Tribunal would schedule a one-hour conference call hearing to hear the parties’ submissions on this issue.

5The applicant advised the Tribunal and the respondents that she objected to the admissibility of the Fiddick, Lefebvre, and Szusz tapes, but not the admissibility of Toms tape. A conference call hearing to hear the parties’ submissions on the admissibility of the three tape cassettes was held on December 20, 2010.

The Applicant’s Position

6The applicant submits that the three tape cassettes should not be admitted into evidence at the hearing. Rule 15 of the Tribunal’s Rules of Procedure provides that all matters disclosed during mediation are confidential, shall not be referred to in any subsequent proceedings unless agreed to by the parties, and she does not agree to the admissibility of the three tape cassettes. Parties to a Tribunal proceeding have an obligation to produce all arguably relevant documentation. She asserts that the only arguably relevant tape cassette is the Toms tape. Also, while she was not obliged to produce it because it is not relevant, she also produced the Fiddick tape. The Lefebvre tape and the Szusz tape, despite being labelled, are blank, were created only for the purposes of mediation and, she claims, are not relevant.

7The applicant submits that she would be prejudiced if the Lefebvre tape and Szusz tape were introduced because the respondents have alleged that the contents of the tapes were erased or altered and that an adverse inference should be drawn against the applicant unless she satisfied the Tribunal that the tapes never contained information. Had the tapes not been disclosed at the mediation, the respondent would have no knowledge of the tapes.

The Respondents’ Position

8The respondents submit that the applicant and/or her husband told Ms. Lefebvre during their telephone conversation on December 26, 2008 that the conversation was being taped. The respondents note that the Reply filed by the applicant references the Fiddick tape and states, “I have the message taped as well as other taped conversations”. The respondents also submit that the applicant and her husband brought all the tape cassettes to the mediation on April 8, 2010, which they placed on the table and were seen by the respondents. The respondents submit that all the tape cassettes are admissible because they are relevant.

Analysis

9The Lefebvre tape and the Szusz tape are both dated December 26, 2008, which is a key date at the hearing as that is the date that the applicant resigned from her employment. The applicant alleges that she was forced to resign on that date because the respondents would not accommodate her disability needs in a modified work program contrary to the Code. The respondents deny that they violated the Code and allege that the applicant voluntarily resigned rather than attend work.

10The Tribunal’s mediation services give parties to proceedings before the Tribunal the opportunity to have settlement discussions with a Tribunal member who will not preside over the hearing. The settlement discussions are confidential and undertaken on the premise that information shared and positions taken at the mediation will not be used at a subsequent hearing. At the commencement of a Tribunal mediation, the parties are asked to sign a Confidentiality Agreement. At the time these parties attended the Tribunal mediation, the Confidentiality Agreement included, at para. 5, the following:

We understand and agree that this is a confidential process. Documents provided to you for the purposes of the mediation and all statements made during the mediation are without prejudice and cannot be used in evidence before the Tribunal or in any other civil proceeding with[out] the consent of the party who provided the document or made the statement. This does not prevent any party from relying on its own documents used in mediation at the hearing provided they are disclosed and produced to the other parties in accordance with the Tribunal’s Rules.

11The applicant submits that the Lefebvre and Szusz tapes ought not to be admitted because they were prepared specifically for the mediation that was held between the parties through the Tribunal’s mediation services. I accept that, in the spirit of the Tribunal’s mediation services, material prepared specifically for a mediation ought not be admitted at a hearing over the objection of the party who prepared it. See Liquor Control Board of Ontario v. Magnotta Winery Corporation, 2010 ONCA 681, at para. 29.

12I have difficulty accepting that argument in these circumstances. The Lefebvre and Szusz tapes are both clearly labelled December 26, 2008, well in advance of the date on which the Application was filed, let alone the date of the mediation. Further, and more importantly, in the Reply filed by the applicant, she writes in response to various paragraphs of the Response:

I was unaware of this false accusation until I received a call from Pauline Fiddick on March 30/09 of which I have the message taped as well as other taped conversations. [Emphasis added.]

The emphasis on the words “other taped conversations”, rather than “another taped conversation” suggests that more than one other conversation was taped beyond the Fiddick tape.

13I find that because of the wording used in the Reply, the existence of the Lefebvre and Szusz tapes appear, at this stage, to be relevant to the proceedings and are therefore admissible.

14It may be that after the conclusion of all the evidence, including the evidence of Ms. Lefebvre, who will have to specifically testify about the respondents’ allegation that she was told on December 26, 2008 by the applicant and/or Mr. Byers that their conversation was being taped, that the Tribunal will accept the evidence of the applicant and Mr. Byers that the Lefebvre and Szusz tapes were prepared specifically for the mediation and that the reference to “other taped conversations” was a typing mistake. The Tribunal would expect to hear submissions from the parties’ counsel during final submissions with respect to the evidence about the tape cassettes and what, if any, weight to be placed upon the existence of the tape cassettes.

15At this point I do not find that the Fiddick tape is relevant as it pertains to a conversation that took place months after the applicant’s resignation and as such it is not admissible.

16The hearing will continue on the hearing dates scheduled for March 2011.