Fawzy v. Paris Jewellers Ltd., 2012 HRTO 1626

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nader Farid Fawzy Applicant

-and-

Paris Jewellers Ltd. Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: August 24, 2012 Citation: 2012 HRTO 1626 Indexed as: Fawzy v. Paris Jewellers Ltd.

WRITTEN SUBMISSIONS

Paris Jewellers Ltd., Respondent Rich Appiah, Counsel

Introduction

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges reprisal with respect to the respondent’s termination of the applicant’s employment soon after he reported complaints of sexual harassment by two of his staff to the respondent, his employer. These staff members, Mariana Biazrov and Ragani Shiwrat, have also filed Applications, 2011-10477-I and 2011-09990-I, which allege sexual harassment and discrimination because of sex, ethnic origin and/or race. Ms. Biazrov added reprisal to her allegations related to the termination of her employment in the year following the alleged sexual harassment. Many months after the respondent terminated the applicant’s employment, the respondent terminated the employment of Ms. Biazrov and all the staff with whom she worked, stating that missing inventory was the reason.

2On July 19, 2012, the Tribunal issued an Interim Decision, 2012 HRTO 1415, directing the parties in this Application, and in the consolidated Applications of Ms. Biazrov and Ms. Shiwrat, to file any submissions opposing the consolidation of Mr. Fawzy’s Application with those of Ms. Biazrov and Ms. Shiwrat. The respondent filed submissions opposing the consolidation of this Application with the others.

3This Interim Decision deals with the respondent’s opposition to consolidation and with the applicant’s Request for an Order During Proceedings concerning disclosure.

REASONS FOR NOT CONSOLIDATING

4Although the respondent is named in all three Applications, it takes the position that Mr. Fawzy’s should not be consolidated with the other two Applications filed against it. It does not contest the fact that it received from Mr. Fawzy the sexual harassment complaints of Ms. Biazrov’s and Ms. Shiwrat’s. It argues that Mr. Fawzy’s Application will involve facts and issues which focus on his employment performance, and will involve different witnesses than those focusing on the women’s allegations of sexual harassment, and the termination of their employment at a different time.

5While there is some overlap between this Application and the others, I agree that it is not appropriate to consolidate it with Ms. Biazrov’s and Ms. Shiwrat’s Applications given the divergent issues upon which the evidence will need to focus most of the time, and given the respondent’s concession that Mr. Fawzy communicated to it the applicants’ complaints of sexual harassment. Mr. Fawzy’s hearing will not need to include evidence on whether the sexual harassment occurred, or whether Mr. Fawzy reported harassment complaints to the respondent, whereas Ms. Biazrov’s and Ms. Shiwrat’s hearing will need to focus on that evidence. Instead, Mr. Fawzy’s evidence will need to focus on whether the respondent intentionally terminated his employment because he claimed or enforced his rights under the Code, or refused to infringe a right of another person under the Code. Mr. Fawzy’s Application will not be consolidated with the Applications of Ms. Biazrov and Ms. Shiwrat.

6The parties should note, however, that they may choose to adduce evidence through any witness that they wish to call, as long as the proposed testimony is relevant to the Applications being heard. It does not matter whether a proposed witness is also a party in another matter set down for another hearing. The parties should also note that they, not the Tribunal, are responsible for arranging that their witnesses appear at the hearing.

DISCLOSURE

7The applicant has made a request for the production of the following documents:

1. Budget, sales and hours for the years of 2010, 2011 and 2012 with taxes for the stores P26 and P28;

2. Budget, sales and hours for the years of 2010, 2011 and 2012 for all the stores within the company;

3. Report of the respondent’s investigation into the alleged sexual harassment and misconduct of Jim Crusoe, the manager about whom Ms. Biazrov and Ms. Shiwrat complained;

4. Mr. Crusoe’s resume used by him when he applied for his position as national sales manager;

5. Any notices or warnings from the respondent to the applicant between September 26, 2010 and September 12, 2011; and

6. Any termination letter from the respondent to the applicant.

8To deal with the requests in reverse order, I note that the respondent’s Response to the applicant’s Request, with respect to the sixth item, states that no termination letter exists. I therefore cannot order its disclosure.

9With respect to the fifth item, the respondent states that any that exist have already been disclosed.

10With respect to the fourth item, the respondent argues that Mr. Crusoe’s resume is not arguably relevant to the allegations in the Application. The applicant argues that he is asking for Mr. Crusoe’s resume to demonstrate that he had no experience in the business, indicating “that he was only hired because of his previous relationship with the general manager which is why he was probably allowed to continue with his actions.” It therefore appears that the applicant’s request for the resume is to prove that because the general manager had a personal relationship with Mr. Crusoe, she allowed him to continue the alleged harassment of the applicant’s staff after the applicant reported their complaints. Even if the applicant might establish such nepotism in the context of allowing the personal respondent to continue the alleged harassment, such privilege would be relevant with respect to whether the corporate respondent dealt properly with the complaints, not with respect to whether it reprised against the applicant.

11The applicant did not state in his submissions that he wants the resume to establish a relationship between the general manager and Mr. Crusoe in order to establish favouritism by the general manager of Mr. Crusoe over him to the point where she might reprise against the applicant for having communicated staff complaints about Mr. Crusoe, but even if that were a reason for the request, the applicant is premature in asking it. The Response to the Application admits that the general manager had known Mr. Crusoe prior to his being hired, but deny that he was “a close personal friend” as alleged in the Application. The applicant may question the general manager and Mr. Crusoe at the hearing with respect to their relationship and the effect their relationship had on the termination of the applicant’s employment. After such questioning, the applicant may renew his request for Mr. Crusoe’s resume if it appears that it would be relevant.

12With respect to the third item, the respondent argues that the investigation report of the complaints against Mr. Crusoe is not relevant to this Application. At this stage in the proceedings, I agree. There is nothing in the applicant’s request submissions to indicate that the applicant requires disclosure of the report, because he was interviewed by the investigator who created the report and believes that the contents may discuss him. Instead the submissions indicate that the report is arguably relevant because it would support his position that the alleged harasser’s actions were found to be “misconduct” by the investigator, and that finding is contrary to the respondent’s alleged communication to the applicant prior to the investigation that “nothing was wrong.” At this stage in the proceedings, it is not clear to me that such information is denied by the respondent or relevant to the allegation of reprisal.

13Another reason for which I am reluctant to order the disclosure of the report stems from my understanding that the applicant feels he needs it to establish that Mr. Crusoe was found to have violated the Code. I do not understand why it is necessary for the allegations of sexual harassment to be established in order for the applicant to prove his employment was terminated because he reported to the respondent the harassment complaints. Reprisal would be established whether or not the allegations of the sexual harassment by Mr. Crusoe were substantiated in an internal investigation. The request for a copy of the investigation report is denied at this stage of the proceedings, but it may be revisited if the applicant can demonstrate at the hearing that it has become relevant.

14With respect to the first and second requests, the respondent claims the applicant’s employment was terminated due to his poor performance, including “deficiencies” in meeting sales targets by him and by the store he managed in Brampton for which he was responsible. The respondent argues that many factors are at play at other stores which mean a comparison is not relevant; however, the respondent obviously made some comparison between the applicant’s sales figures and others to conclude he was deficient. I am therefore inclined to agree with the applicant that documents are arguably relevant if they indicate the sales targets met by the other managers and by their stores in the time period when the applicant worked. I do not agree that sales targets at other stores before and after the applicant worked are arguably relevant; however, I agree that documents which show the sales targets of the applicant’s store before and after he worked are.

ORDER NOT TO CONSOLIDATE

15This Application will not be consolidated with those of Ms. Biazrov and Ms. Shiwrat, and the hearing of this Application will begin, as scheduled, on February 11, 2013.

DIRECTION

16In order to narrow down what exactly is arguably relevant with respect to the first and second requests for disclosure, the respondent is directed to provide to the applicant and file with the Tribunal, within 21 days of the date of this Interim Decision, an explanation for concluding that the applicant’s sales targets, and those of his store, were “deficient”. The respondent must be very clear about what standard it used in assessing the applicant’s sales in order to conclude that they were “deficient”. The respondent must also include the documents which indicate the sales of the stores or managers the respondent used as a standard against which it measured the applicant, and, if the applicant so chooses, he may request further disclosure after examining the above documents.

17I am not seized.