HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natalina Garofalo

Applicant

-and-

Cavalier Hair Stylists Shop Inc. and Joseph Finelli

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: May 11, 2011

Citation: 2011 HRTO 907

Indexed as: Garofalo v. Cavalier Hair Stylists Shop

INTRODUCTION

1The purpose of this Interim Decision is to address a number of preliminary issues prior to the hearing.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 21, 2009, which alleged that the respondents subjected her to discrimination because of her disability, sexual harassment, sexual solicitations, and reprisals, all with respect to employment.

3The respondents filed a Response on November 6, 2009, which denied the allegations of discrimination, harassment, solicitation, and reprisal. The applicant filed a Reply on November 27, 2009

4On January 13, 2011, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for May 17, 18 and 19, 2011. The Notice also set out the Tribunal’s Rules of Procedure with respect to disclosure of documents and witnesses, and informed the parties that the disclosure deadline was April 4, 2011.

DISCLOSURE OF DOCUMENTS

5Rule 16 requires each party to deliver to every other party and file with the Tribunal a list and copy of all documents that it intends to rely on no later than 45 days prior to the first scheduled day of hearing.

6Rule 1.19.1 also provides that a party must file at least two hard copies, at least one of which must be unbound, of any document greater than 20 pages.

7The applicant fully complied with Rule 16, but the respondents did not. Specifically, the respondents have not filed two copies of all documents that they intend to rely on at the hearing, including one unbound copy.

8The Tribunal therefore orders the respondents to comply with Rules 16 and 1.19.1 immediately.

PRODUCTION OF DOCUMENTS

9The applicant also filed a Request for Order During Proceedings on April 13, 2011, which requested that the respondents produce arguably relevant documents in their possession, which are allegedly outstanding. The respondents did not file a Response to the Request.

10The applicant requested that the respondents produce the following documents:

(a) A complete copy of the applicant’s personnel file.

(b) If not included in paragraph (a) above, a copy of any and all notes and correspondence (whether internal or external) in printed or electronic form, sent or received by the respondents in relation to the applicant over the course of her employment, including but not limited to those relating to:

i. her medical condition and/or accommodation in the workplace;

ii. complaints made by the applicant regarding her working conditions;

iii. the decision to remove her colour cards and client address book from her work station; and

iv. the decision to terminate her employment.

(c) Copies of the respondents’ records relating to training seminars and staff meetings attended to and/or led by the applicant.

(d) Copies of the respondents’ records relating to the assignment of assistants to the applicant including the timing and duration of the assignment(s).

(e) Copies of any and all notes and correspondence (whether internal or external) in printed or electronic form, sent or received by the respondents in relation to the decision to computerize client information including the date upon which each stylist’s colour card and address book information was entered into the system, if at all.

11The applicant submitted that the requested documents are arguably relevant because they relate to her disability, workplace accommodations, the removal of the accommodations, her complaints regarding their removal, and her assertions that she was subjected to workplace reprisals and differential treatment.

12Rule 1.7(p) of the Tribunal’s Rules provides that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may require a party to produce any document. The test for production at the disclosure stage of the hearing process is not high. In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, the Tribunal stated at paragraphs 8 and 9:

The threshold for production and disclosure of documents before the Tribunal is ‘arguable relevance’ – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para. 38.

Finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing: Neusch, supra, at para. 41.

13I agree that the specific documents that the applicant requested are arguably relevant because there is a nexus between the documents sought and the issues in dispute before the Tribunal. However, I do not agree that the applicant’s entire personnel file and all notes and correspondence that relate to the applicant during the course of her employment are arguably relevant. This part of the Request is overly broad.

14Accordingly, the Tribunal orders the respondents to immediately disclose to the applicant all the specific documents that she listed in her April 13, 2011 Request, or notify the applicant and the Tribunal that such documents do not exist or are privileged.

DISCLOSURE OF WITNESSES

15Rule 17 requires each party to deliver to every other party and file with the Tribunal a witness list, and a brief statement summarizing the expected evidence of each witness, no later than 45 days prior to the first scheduled day of hearing.

16The applicant filed her witness list and statements on time, but the respondents did not. Specifically, the respondents filed their witness list and statements on May 5, 2011, which was more than one month late, and provided no explanation for the delay.

17The applicant then filed a letter on May 9, 2011, which objected to the respondents’ witness statements on the basis that they are materially deficient, and requested that the respondents provide further and better witness statements.

18The respondents also filed a letter on May 9, 2011, which stated that the scope of two of the applicant’s witnesses, a doctor and a social worker, has not been accurately defined.

19The exchange of witness statements prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to structure the hearing. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent. C.D. v. Wal-Mart Canada, 2010 HRTO 426 at para. 7.

20The respondents’ witness statements are in point form and range in length from one point to four points. In my view, they do not fully comply with Rule 17 because they are not in complete sentences and lack details about the particular evidence that each witness will give to address the applicant’s allegations of discrimination, harassment, solicitation, and reprisal.

21Furthermore, in my view, the applicant’s witness statement for her social worker complies with Rule 17, but the witness statement for her doctor does not. Specifically, the latter statement indicates in a general way that the applicant’s doctor will testify about limitations arising from her back injury, but it does not particularize or explain in any detail what the limitations were or are.

22Accordingly, the Tribunal orders the parties to immediately file amended witness statements that fully comply with Rule 17.

HEARING WITNESSES BY TELECONFERENCE

23The applicant filed a letter on May 5, 2011, which requested that two of her witnesses, her doctor and social worker, be permitted to testify by teleconference. She stated that requiring them to testify in person would inconvenience them and disrupt their medical practice.

24The respondents filed a letter on May 9, 2011, which opposed the applicant’s request on the basis that there will be credibility issues with respect to the evidence of the doctor, the scope of each witness’s testimony has not been accurately defined, the respondents intend to put documents in front of the witnesses while they are testifying, and neither witness has been qualified as an expert.

25Rule 3.5 states that the Tribunal may conduct hearings in person, in writing, by telephone or by other electronic means, as it deems appropriate. In addition, s. 5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, states:

The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

26While the Tribunal has allowed witnesses to testify by telephone conference in certain circumstances, depending upon the nature and extent of their evidence, it will generally not do so where the credibility of the witness is a significant issue, or where the evidence of the witness is extensive or key to the proceedings. Zeividavi v. Catholic Immigration Services, 2011 HRTO 406 at para. 15.

27Given that the social worker’s testimony will likely be brief and not raise significant credibility issues, I am prepared to allow her to testify by teleconference. The applicant is directed to ensure that the social worker has the parties’ documents in front of her when she is testifying.

28On the other hand, it appears that the doctor’s evidence is key to the proceeding, and may raise significant credibility issues. As such, I am not prepared to allow him to testify by teleconference, and he must appear in person.

29I will deal with any further preliminary issues on the first day of the hearing.