Russell Sears v. Honda of Canada Mfg., 2012 HRTO 1479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Russell Sears

Applicant

-and-

Honda of Canada Mfg., a division of Honda Canada Inc. and Jim Proper

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: July 30, 2012

Citation: 2012 HRTO 1479

Indexed as: Sears v. Honda of Canada Mfg.

WRITTEN SUBMISSIONS

Russell Sears, Applicant

Self-represented

Honda of Canada Mfg., a division of Honda Canada Inc. and Jim Proper, Respondents

Jayson A. Rider, Counsel

Introduction

1This is an Interim Decision and Case Direction in respect of an Application filed on April 21, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.

2The parties were unable to find a mutually agreeable date and time for a mediation. One day of hearing has been set in this matter, for September 7, 2012.

3To briefly summarize the positions of the parties as reflected in the Application and the Response, the applicant claims that he was discriminated against and harassed in the workplace over several years in respect of difficulties arising from his colorblindness. In their Response, filed on June 24, 2011, the respondents state that they were unaware of any specific restrictions or limitations imposed by the applicant’s visual disability, and that the applicant did not raise any specific requests for accommodation prior to absenting himself from the workplace on December 3, 2010. The respondents state that the applicant returned to work on June 20, 2011, and that “certain accommodation measures are being implemented”.

Request for Order to Amend

4On July 11, 2012, the applicant filed a Request for an Order During Proceedings, asking to amend the Application to add allegations that necessary accommodation measures were not put in place, that he was asked to do work that his disability made difficult or impossible, that his employment was terminated on February 16, 2012. In the request, the applicant alleges that the termination was a reprisal for the purposes of the Code. He also asked to amend his request for compensation.

5The respondents do not object to the amendment that would add items 10, 11 and 12 to the Application; these deal with the applicant's return to work and with a particular accommodation issue. They do object to items 13, 14 and 15, which deal with the allegation that the applicant was asked to do work that he could not do, with the termination of the applicant's employment and with the additional remedies. Their submission is that a proper response will require a new hearing date, and that the reprisal allegation should be dealt with as any fresh Application.

1In Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16, which dealt with an allegation of reprisal in addition to other requested amendments, the Tribunal laid out some of the factors considered when determining whether to allow an applicant to amend an application or add additional allegations including:

a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,

b. Whether the allegations provide a useful context for considering the legal issues in the case,

c. The reasons for raising the allegations at this date,

d. The quality of the evidence to support the additional allegations,

e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and

f. The impact of the proposed amendment on the course of the hearing and the other parties.

6In this case, none of the factors noted above appear to militate in favour of denying the request to amend, and the overlap of evidentiary issues in fact indicates that the hearing of all of the allegations at one time is likely to be the more efficient approach.

7In the circumstances, the applicant's Request to amend the Application is granted. In view of the addition of two more allegations, it will be appropriate to schedule a second day of hearing. The respondents have stressed that they will require time to prepare if the amendments are allowed. Further, in view of the additional allegations, it will be appropriate to schedule 2 days for the hearing. In the circumstances, the Tribunal will cancel the September 7 hearing date; the parties are directed to contact the Registrar’s Office within ten days of the date of this Interim Decision with at least five available dates before the end of November, 2012. Pursuant to Rule 1.7 of the Tribunal’s Rules of Proceedure, the time periods for production of evidence will be somewhat abridged.

Further Disclosure and Amendment of Witness Statements

8In the light of the above conclusion, the witness statements of the parties are likely to be amended, and further statements may be added, to deal with the allegations of failure to accommodate and of reprisal. However there are also two other issues concerning disclosure of evidence and amendment of witness statements.

9The Application refers to a number of incidents occurring between 2001 and November 2010. The respondents objected to the timeliness of a number of the allegations, and the Tribunal requested the parties’ submissions on whether they were untimely and whether the applicant could seek a remedy for them. In the applicant’s submissions, he agreed that Items #3 - #9 of the narrative in his Application are untimely allegations of discrimination. He stated that he did not seek a monetary remedy with respect to those events, but that they showed a pattern of harassment and demonstrated what he did to try and solve the issues.

10In an Interim Decision dated December 14, 2011, (2011 HRTO 2246) the Tribunal did not order the respondents to respond to the allegations in items 3 to 9 of the Application, ruling that any determination as to the relevance and admissibility of this background evidence would be left to the Vice-chair at the hearing.

11In their Response, the respondents say that they were unaware of any specific restrictions or limitations imposed by the applicant's condition, and that the applicant did not raise any specific requests for accommodation prior to absenting himself from the workplace on December 3, 2010. In Items #3 - #9 of the narrative in his Application, the applicant says he spoke to managerial staff including managers and people in “Foreman” positions concerning his disability-related difficulties in the workplace on several occasions prior to December 3, 2010. Among the persons he names in this regard are John Moulding, the corporate respondent's Associate Relations Administrator, and Ellen Purchase (the corporate respondent's WSIB specialist).

12The respondents’ witness statements and documents as filed to date relate solely to evidence arising during the time period of the applicant's timely allegations of discrimination (items 1 and 2 of the Application). In view of the respondents’ position concerning their knowledge prior to December 3, 2010 of the applicant's disability related issues, the recollections of the persons with whom the applicant allegedly raised his concerns related to his allegations in Items #3 - #9 are certainly relevant to the applicant's timely allegations, to which the hearing of the Application will be confined. Accordingly, the respondents must disclose and file any evidence they wish to call related to the applicant’s allegations in Items #3 - #9.

13On July 12, 2012, the applicant filed a Request for an Order During Proceedings, asking the respondents be required to disclose additional documents. The respondents agree to disclose documents 1 and 4 as set out in the request, but object to the production of documents 2 and 3. Document 2 is described as a prescription eyeglass form and document 3 is described as a letter to Gilles Madore.

14As noted above, the applicant's original allegations that certain actions and omissions by the respondents prior to April 21, 2010 breached the Code will not be dealt with at the hearing; the applicant has agreed that they are untimely. However I find that documents 2 and 3 are relevant to the applicant's claim that he alerted the respondents to his disability-related difficulties prior to December 3, 2010, and this allegation is relevant to his timely allegations. Accordingly, the applicant’s Request for disclosure is granted; the respondents must disclose documents 2 and 3 within ten days of the date of this Interim Decision.

15Finally, the applicant has indicated that he will be the only witness that he intends to call. However, he not met the Tribunal’s requirements in respect of statements of witnesses’ intended evidence. His witness statement identifies, to some extent, the topics upon which he will speak, but it does not summarize his “expected evidence”; that is, what he intends to say.

16In C.D. v. Wal-Mart Canada, 2010 HRTO 426, the Tribunal noted that

Witness statements should…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.

(at para. 7)

17The applicant may choose to file with the Tribunal and copy the respondents with a fresh witness statement indicating what he intends to say at the hearing about every aspect of the Application. Alternatively, if the applicant wishes to adopt the statements he made in his Application he may do so, as long as he indicates that this is what he is doing. In this case, because the fact situations relevant to the allegations that amend the Application had not arisen at the time the Application was filed, the applicant must in addition file with the Tribunal and copy the respondents with a witness statement that indicates what he intends to say at the hearing about the allegations of failure to accommodate and reprisal that have now been added to the Application. The applicant must do so within 10 days of the date of this Interim Decision.

ORDER

18The September 7, 2012 hearing date is cancelled.

19Within ten days of the date of this Interim Decision,

a) the applicant must file with the Tribunal and copy the respondents with either a fresh witness statement indicating what he intends to say at the hearing about every aspect of the Application, or a written indication that he intends to adopt the statements he made in his Application, along with a witness statement that indicates what he intends to say at the hearing about the allegations of failure to accommodate and reprisal that have now been added to the Application.

b) the respondents must send the applicant Document 2, described as a prescription eyeglass form and Document 3, described as a letter to Gilles Madore.

c) the parties must contact the Registrar’s Office with at least five available dates for hearing before the end of November, 2012. The Registrar will schedule two days of hearing.

20Within twenty days of the date of this Interim Decision:

a) the respondents must file with the Tribunal and copy the applicant with any documentary evidence or witness statements they wish to submit concerning the applicant’s assertions in Items #3 - #9 of the Application that he raised his concerns with the persons named.

b) the respondents must file with the Tribunal and copy the applicant with any documentary evidence or witness statements they wish to submit concerning the amendments to the Application.

21The parties are reminded that if anyone requires accommodation during the hearing for reasons related to grounds of discrimination under the Code, s/he should contact the Registrar’s Office as soon as possible. The HRTO’s Policy on Accommodation and Accessibility is available at http://www.hrto.ca/hrto/?q=en/node/44.