Lemieux v. Guelph General Hospital, 2011 HRTO 935

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux

Applicant

-and-

Guelph General Hospital, Audrey Henderson, Annette Harrington

and Kaye Snowe

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: May 16, 2011

Citation: 2010 HRTO 935

Indexed as: Lemieux v. Guelph General Hospital

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 29, 2009. The underlying human rights complaint (the complaint) was filed with the Ontario Human Rights Commission (the “Commission”) on July 3, 2007. This decision deals with a Request for Order During Proceedings (Request) filed by the applicant on May 10, 2011.

2The Request seeks two things. The applicant seeks the production of a policy document referred to in the cross-examination of Kaye Snowe a respondent and the decision maker in respect of the termination of the applicant’s employment which is at the heart of this dispute. The document relates to the respondent employer’s attendance management program which is available to non-probationary employees but not employees who are still on probation. It appears that this policy was not applied to the applicant because at the time of her termination, the respondent employer believed, incorrectly as it turns out, that the applicant was on probation. The respondent objects to the production of the document on relevance grounds and makes a compelling point in that regard. It also states that the assertion in the Request that this document was provided to the applicant at the conclusion of the termination meeting in January 2007 is a fabrication and is flatly contradicted by the description of what occurred in the complaint. However these issues aside the program or policy was referred to in the evidence and although there are substantial questions with respect to its ultimate relevance to the issues in dispute in this Application I am not prepared at this stage to entertain argument on the ultimate relevance of the attendance management program to the issues in the Application.

3The applicant also seeks an Order that the respondent make available for cross-examination either the respondent Annette Harrington, or Rod Carrol. Annette Harrington is named as a respondent in this Application and was listed as a potential witness for the respondent. On what had been anticipated would be the last of day of evidence in this hearing the respondents advised that Ms. Harrington was not available to give evidence and the respondent intended to rely on her will say alone. I directed that if the will say was going to be relied upon the witness must be made available for cross-examination. Later in the day the respondents advised that Ms Harrington would not be tendered as a witness and the will say withdrawn. In response the applicant indicated that she wanted to cross-examine either Ms Harrington or Mr. Rod Carrol a senior official of the respondent hospital. I indicated that I would entertain those submissions in writing. On May 10, 2011 the applicant filed her Request for Order. Given that the parties were reconvening by telephone conference call on May 11, 2011 to complete the cross-examination of another respondent witness. I directed that the issues raised in the Request would be dealt with at that time.

4As I indicated at the hearing the question was not whether there was a reason why the applicant might want to question the respondent Harrington or Mr. Carrol, but rather whether I had any authority to compel their attendance to give evidence or to compel the respondent to tender them as witnesses. The respondents took essentially two positions. First it was said that their obligation was limited to responding to the evidence that was tendered by the applicant. If in their judgement there is no evidence from the applicant that requires a response then there is no need to call evidence. That is, if in their judgement there was no evidence from the applicant’s witnesses with respect to the respondent Harrington that could give rise to a finding of a violation of the Code on the part of either the respondent personally or the corporate respondent as her principle, then there is no need to call her as a witness. The respondent also stated that the Tribunal had no authority to compel it to call any particular witness or to compel a respondent to give evidence if they do not wish to do so. Although there were no substantial submissions on this point, the respondents also suggested that the Canadian Charter of Rights and Freedoms would prevent the Tribunal, even assuming that it had the power to compel a respondent to give evidence, from doing so.

5As I indicated at the hearing a respondent who does not give evidence or a respondent who does not call a witness who has relevant evidence to give runs a risk that an adverse interest might be drawn from that failure. That is a submission that the applicant might make at the appropriate time in this case.

6The applicant heard the evidence of the key decision makers of the respondent, in particular the person who testified that she made the decision to terminate the applicant. Upon review of the complaint, the evidence of the applicant and the tendered willsay of Ms. Harrington, it was not plain and obvious to me that the evidence of Ms Harrington was critical to the resolution of the issues in this case. Had I been of that view I would have indicated that to the parties at the hearing. Again as I indicated at the hearing, similar considerations apply with respect to Mr. Carrol.

7The applicant was unable to point to any power I had to compel the respondents to call either witness. A review of the Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Code, discloses no such authority. As indicated above the failure of the party to call an important witness can have consequences for that party, but the general approach is to leave those decisions to the parties.

8As a consequence of the oral Orders made at the hearing the evidence is concluded. The parties agreed to make written submissions on a scheduled agreed to at the hearing. Upon receipt of the parties’ submissions a written decision on the liability issues will be issued in due course.

Order

9The Tribunal makes the following Order:

• The corporate respondent will deliver and file within 10 days of the date of this decision the document sought in the Request, described as follows: the Guelph General Hospital’s Attendance Program Pamphlet.

10I am seized of this case.