HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Maureen Crowley
Applicant
-and-
Liquor Control Board of Ontario (LCBO), Rick Redwood, Susan Quinn, Natalie Lachapelle, Anita Fulford, Marian Chipchase and Dan Dean
Respondents
AND B E T W E E N:
Maureen Crowley
Applicant
-and-
Ontario Public Service Employees Union
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Crowley v. Liquor Control Board of Ontario
1These are two Applications filed June 30, 2009 under Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The underlying complaints filed with the Ontario Human Rights Commission (the “Commission”) are dated April 8, 2008, although it appears that the complaints were received by the Commission on February 24, 2008.
2The purpose of this Interim Decision is to address the applicant’s Request for Order dated March 31, 2011.
3I also will address case management issues relating to this proceeding.
Background
4This matter currently is scheduled for a preliminary hearing on April 20 and 21, 2011. The purpose of this preliminary hearing is to address preliminary requests made by the respondents to dismiss the Applications and/or to remove personal respondents. This preliminary hearing was scheduled pursuant to my last Interim Decision in this matter dated December 2, 2010, 2010 HRTO 2407.
5In my last Interim Decision, I expressly stated as follows (at para. 29):
Having reviewed and considered the material filed with the Tribunal to date, in my view it is appropriate to hold a one day hearing to receive evidence and oral submissions regarding these preliminary issues, and particularly whether the applicant can establish that she had a disability for which she sought accommodation at the relevant time. At this one day hearing, the Tribunal would hear all of the applicant’s evidence regarding whether she had a disability within the meaning of the Code at the material times, what information about any such disability and her need for accommodation was communicated to the LCBO, and why she alleges that the transfers granted to her failed to appropriately accommodate any disability she may have. The Tribunal also would hear any evidence from the LCBO and Redwood in response.
6I then proceeded to set out certain timelines for the parties to file various materials for the purpose of this preliminary hearing. In accordance with the timelines I established, the Union and the personal respondents other than Mr. Redwood filed a Request for Order dated December 22, 2010 seeking dismissal of the Applications against them for failure to disclose a prima facie case. The parties were advised by the Tribunal by letter dated January 12, 2011 that this Request also would be addressed at the preliminary hearing.
7The hearing scheduled for April 20 and 21, 2011 is a preliminary hearing, and is not and was not intended to be a full hearing on the merits or substance of the Applications in their entirety. I set up this preliminary hearing because, having reviewed the materials filed by the parties, it appears to me that much in this case turns on the fundamental questions of whether the applicant had a disability within the meaning of the Code at the time of her initial request for a transfer in March 2006, whether and to what extent the applicant informed the employer of any disability she may have had at that time in support of her transfer request (or whether, as submitted by the applicant, the information she did provide to the employer was sufficient to trigger a duty to make further inquiries), and whether her re-location to the Wasaga Beach and later Collingwood stores can be regarded as an accommodation for any disability she may have had. It is these fundamental issues that I intended and want the preliminary hearing to focus on.
8I am well aware that there are other issues raised in the Applications. I am aware that the applicant alleges that she experienced a poisoned work environment at the Collingwood store because of disability, which she alleges relates to her co-workers’ reaction to her placement in that store as an accommodation for her disability because it deprived them of an opportunity for a permanent position in the store. This allegation, it appears to me, turns upon whether the applicant’s placement in the Collingwood store in fact was an accommodation of any disability she may have had at the time. While I have identified that one of the issues that I want to be addressed at the preliminary hearing is whether the applicant’s re-location to the Collingwood store was an accommodation for any disability she may have had, I do not want or need to hear evidence at this time about whether or not the applicant did experience a poisoned work environment at the Collingwood store or what the details or particulars of that poisoned environment are alleged to have been. Rather, I will be asking the parties to make submissions as to whether, if I find either that the applicant did not have a disability within the meaning of the Code at the time of her re-location and/or that her re-location to the Collingwood store was not an accommodation for any disability she may have had, there remains any basis to support the applicant’s allegation that any poisoned work environment she may have experienced at the Collingwood store is connected to any ground protected under the Code.
9Similarly, I understand that there is an allegation that the two month extension of the applicant’s temporary placement at the Collingwood store which was communicated to the applicant in March 2007 represents a denial of the applicant’s right to receive appropriate accommodation of her disability. Once again, it appears to me that this issue turns on whether the applicant’s placement in the Collingwood store can be regarded as an accommodation for any disability she may have had at the time. This again is the issue I have asked the parties to address at the preliminary hearing. I have not seen any evidence from the materials filed with the Tribunal in preparation for the preliminary hearing to indicate that at the time of the two month extension in March 2007, the applicant provided any further medical information to the employer beyond what had been provided in March 2006 or made any new or distinct request for accommodation of a disability at that time in March 2007. Rather, as I understand it, the allegation is that based upon the information provided to the employer in March 2006 and any disability the applicant may have had at that time, the employer should have accommodated her by providing a permanent placement in Collingwood rather than a temporary one that was subsequently extended. I also understand that the applicant is alleging that the brief two month extension was motivated by the health and safety grievance filed by her co-workers with a desire to force her out of the Collingwood store.
10Those are issues to be addressed at a hearing on the full merits or substance of the Applications rather than at the preliminary hearing. However, once again, I will be asking the parties for submissions on whether, if I find either that the applicant did not have a disability within the meaning of the Code at the time of her re-location and/or that her re-location to the Collingwood store was not an accommodation for any disability she may have had, there remains any basis to support the applicant’s allegations that the two month extension in March 2007 was a violation of the duty to accommodate a disability under the Code or was an extension of or reaction to a poisoned work environment connected to a ground protected under the Code.
11I say all of this by way of background and introduction, as it is important to understand the scope and intent of the preliminary hearing in order to assess the Requests made by the applicant in her Request for Order dated March 31, 2011.
Applicant’s Request for Order dated March 31, 2011
12The applicant first requests that the Tribunal combine the two Applications in this proceeding into one Application. While I appreciate that the applicant’s initial complaint to the Commission was filed as one complaint and then was divided into two complaints as a result of the Commission’s procedures at that time, I do not see any purpose being served at this stage of the proceeding to go through a formal process of combining these two Applications into one Application. The Tribunal already has directed that these two Applications have been consolidated and will be heard together, and that is how they are proceeding.
13The applicant next requests particulars of what are referred to as the “transfer decisions” made by the employer, which appear to mean the employer’s initial decision in May 2006 to offer the applicant a number of options in response to her March 2006 request and the employer’s later decision in March 2007 to offer the applicant a two month extension. The applicant states that she requires these particulars in order to understand the employer’s rationale for its decisions, and seeks disclosure of such things as “numbers / costing around the initial staffing projections, budget changes, and correspondence”. While such documentation may be arguably relevant to the issues to be determined at a full hearing on the merits and substance of the Applications (about which I am making no determination at this time), I find that they are not arguably relevant to the issues on which I have indicated that I want to hear from the parties at the preliminary hearing, which as stated above are focused on whether the applicant had a disability at the relevant time in March 2006, whether she communicated this to her employer sufficiently at that time, and whether her re-location to Wasaga Beach and Collingwood in fact was an accommodation of any disability she may have had.
14The applicant next requests particulars regarding what is referred to as an “investigation” that the employer is alleged to have conducted regarding the work environment at the Collingwood store. Once again, for the reasons expressed above, this matter is not arguably relevant to the issues to be determined at the preliminary hearing.
15The applicant next requests particulars of complaints and grievances filed with the Union about the applicant by co-workers at the Collingwood store, and any information surrounding these complaints and grievances. In response, the Union has confirmed that only one grievance was filed by the applicant’s co-workers, which is the health and safety grievance filed in February 2007. If this matter proceeds to a full hearing on the merits or substance of the Applications, it may be that further disclosure from the Union and the personal respondents on this issue may be required. However, for the reasons expressed above, I did not intend and I do not want to hear evidence about the poisoned work environment allegations themselves at the preliminary hearing. Rather, as stated above, I want to hear submissions as to whether there is any basis for these allegations under the Code in the event that I find either that the applicant did not have a disability at the relevant time or that her placement at the Collingwood store was not an accommodation of any disability. As a result, the particulars and materials sought by the applicant are not arguably relevant to the matters at issue at the preliminary hearing.
16The applicant next has requested disclosure of the employer’s policies regarding accommodation and harassment. I understand from the employer’s submissions that these policies already are available to employees, but in any event are being sent to the applicant directly. The applicant also has requested particulars of any training provided to management and staff during the complaint period. This Request is not arguably relevant to the matters at issue at the preliminary hearing.
17Finally, the applicant has requested that the Tribunal appoint an investigator to gather information about the case and report to the Tribunal. As noted by the respondents, the Tribunal has no power to direct an investigation of this nature. Under section 44 of the current Code, the Tribunal does have the power to appoint a person to conduct an inquiry, who would have the power to question witnesses and gather documents and materials and prepare a report for submission to the Tribunal. This Tribunal has held that a Tribunal-ordered inquiry will not be a routine event and will not be a substitute for the usual production process contemplated by the Rules. See White v. University of Ottawa, 2009 HRTO 1057; Campbell v. Toronto District School Board, 2010 HRTO 783.
18I see no basis that would justify the ordering of a Tribunal-ordered inquiry at this stage of the proceeding. The matters that I have asked be addressed at the preliminary hearing, such as whether the applicant had a disability at the relevant time, what information she provided to her employer about any disability she may have had, and whether the re-location to Collingwood can be regarded as an accommodation for any disability, are all matters that are capable of being addressed by the parties themselves without the necessity of an inquiry, as evidenced by the voluminous materials submitted to the Tribunal to date.
19Accordingly, for the above reasons, the Requests made in the applicant’s Request for Order dated March 31, 2011 are denied.
Case Management
20I now have had a chance to review all of the materials submitted by the parties in accordance with the directions given in my last Interim Decision and in preparation for the preliminary hearing.
21As noted by the respondents, the applicant has not complied with my direction that she was to file, by January 14, 2011, a statement of all of her evidence regarding whether she had a disability within the meaning of the Code at the material times, what information about any such disability and her need for accommodation was communicated to the LCBO, and why she alleges that the transfers granted to her failed to appropriately accommodate any disability she may have. Nor was any such statement included with the materials filed by the applicant on March 31, 2011.
22The applicant has, however, provided a statement that touches on the issues I asked her to address in her complaints and she did file submissions in response to the respondents’ Requests for Orders which also touch on these issues and provides further medical documentation. Accordingly, I will allow the applicant to give evidence and to be cross-examined on the specific issues I have identified to be addressed at the preliminary hearing.
23In the materials filed by the applicant is a lengthy set of notes under the heading Poisoned Work Atmosphere. I do not want to hear the applicant’s evidence regarding these notes or the incidents recorded in that document, many of which post-date the complaint and are therefore beyond the scope of my jurisdiction. As stated above, however, after hearing all evidence relevant to the issues to be determined at the preliminary hearing, I do want to hear submissions from the parties as to whether there is any basis under the Code to support the poisoned work environment allegations, in the event that I determine either that the applicant did not have a disability within the meaning of the Code at the relevant time or that the re-location to the Collingwood store was not an accommodation for any disability she may have had.
24I also note that as part of the applicant’s materials, she has filed a lengthy list of witnesses. I have carefully reviewed this list and the very brief statements of the purpose for which these individuals have been identified as witnesses. On the basis of these brief statements, I do not see any witness who has evidence relevant to the matters at issue at the preliminary hearing. Accordingly, I will not allow the applicant to call any of these witnesses at the preliminary hearing.
25With regard to the witnesses proposed to be called by the employer, my intent at the preliminary hearing is to have these witnesses affirm the truth of the contents of their will say statements and then allow employer counsel to ask any supplementary questions as may be required to respond to oral evidence given by the applicant. I will then allow counsel for the union and employee respondents to ask questions, and for the applicant’s representative to cross-examine these witnesses, but only on areas that are relevant to the issues to be determined at the preliminary hearing.
26With regard to the witnesses proposed by the Union and employee respondents, in my view these statements are more relevant to a hearing on the merits or substance of the Applications rather than to the issues to be determined at the preliminary hearing, as identified in my last Decision. Accordingly, I will not hear evidence from the five employee respondents or from Mr. Woodall at the preliminary hearing.
27I am aware that the applicant has requested an agenda for the preliminary hearing. An agenda is not usually something that is provided for a hearing, but I will set out the order of events for those two days for the assistance of all counsel:
a) I first will hear evidence in chief from the applicant regarding the specific issues that I have asked be addressed at the preliminary hearing, namely whether she had a disability within the meaning of the Code at the material times, what information about any such disability and her need for accommodation was communicated to the LCBO, and why she alleges that the transfers granted to her failed to appropriately accommodate any disability she may have. Mr. Cowley may ask the applicant questions to elicit this evidence as the applicant’s representative, or, if the applicant prefers, I can ask her these questions;
b) After the applicant has completed her evidence in chief, counsel for the respondent employer and counsel for the union and employee respondents will be permitted to cross-examine the applicant on matters relevant to the preliminary hearing, following which any appropriate re-examination will be allowed;
c) If the respondent employer decides to call evidence from all or some of its witnesses, I will have each witness affirm the truth of her or his will say statement and will permit employer counsel to conduct any supplementary examination required to respond to the applicant’s oral evidence. After any supplementary examination for each witness called, I will allow counsel for the union and employee respondents to ask questions, and for the applicant’s representative to cross-examine the witness, but only on areas that are relevant to the issues to be determined at the preliminary hearing. Following this, I will allow any appropriate re-examination;
d) I then will afford the applicant the right to call any appropriate evidence in reply, but only in relation to matters relevant to the preliminary hearing and that were raised for the first time in the oral evidence given by the respondent witnesses and which could not reasonably have been anticipated in advance;
e) I will then hear oral submissions from employer counsel in support of the Request for Order dated December 23, 2010, which shall include submissions on whether, if I find either that the applicant did not have a disability within the meaning of the Code at the time of her re-location and/or that her re-location to the Collingwood store was not an accommodation for any disability she may have had, there remains any basis to support the applicant’s allegations that any poisoned work environment she may have experienced at the Collingwood store is connected to any ground protected under the Code or that the two month extension in March 2007 was a violation of the duty to accommodate a disability under the Code or was an extension of or reaction to a poisoned work environment connected to a ground protected under the Code or any other allegations raised in the complaints;
f) I will next hear submissions from counsel for the union and employee respondents in support of their Request for Order dated December 22, 2010, including submissions on the matters identified in (e) above, and any submissions in response to the employer’s requests;
g) I will then hear submissions from the applicant or her representative in response to the requests made by the employer and the Union and employee respondents, which shall include her submissions on whether, if I find either that she did not have a disability within the meaning of the Code at the time of her re-location and/or that her re-location to the Collingwood store was not an accommodation for any disability she may have had, there remains any basis to support her allegations that any poisoned work environment she may have experienced at the Collingwood store is connected to any ground protected under the Code or that the two month extension in March 2007 was a violation of the duty to accommodate a disability under the Code or was an extension of or reaction to a poisoned work environment connected to a ground protected under the Code or any other allegations raised in her complaints;
h) Finally, I will hear any reply from employer counsel and then from counsel for the union and employee respondents.
28In making their submissions, I want to assure all parties that I have carefully reviewed the written submissions filed by the parties, and oral submissions do not need to repeat what is contained in the written submissions already filed. I also note that, as the applicant has withdrawn her consent to the removal of Mr. Redwood as a personal respondent, this matter will need to be addressed as part of the submissions.
29In order to ensure that we remain on track to complete the preliminary hearing in the two days allotted, I am establishing the following time estimates for the various components of the preliminary hearing as outlined above. In setting time estimates for examination and cross-examination, I note that these are estimates only and are not intended to limit or cut off relevant evidence. If counsel or a party gets to the end of the allotted time, then I would hear from counsel or the party what further areas of evidence they believe they need to cover to complete the supplementary examination or cross-examination and I would rule on what further evidence I need to hear.
Supplementary Examination
Cross-Examination
Maureen Crowley
45 mins
1.5 hrs
Lynda MacDonald
5 mins
15 mins
Peter Kalogiros
5 mins
15 mins
Bonnie MacPhail
10 mins
20 mins
Rick Redwood
20 mins
45 mins
Loreen Corras
15 mins
45 mins
Reply evidence (if any)
Submissions
Employer counsel
1 hr
Union counsel
1 hr
Applicant
1.5 hrs
Reply by employer counsel
15 mins
Reply by union counsel
15 mins
30If any party has any submissions about the manner in which I propose to conduct the preliminary hearing, they shall provide such submissions in writing to the Tribunal and the other parties by no later than 4:00 p.m. on Tuesday, April 19, 2011, and I will address them at the start of the day on April 20, 2011.
Dated at Toronto, this 15th day of April, 2011.
“Signed by”
Mark Hart
Vice-chair```