HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stanley Hitchcock
Applicant
-and-
Lafarge Canada Inc. and Christopher White
Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Hitchcock v. Lafarge Canada
WRITTEN SUBMISSIONS
Stanley Hitchcock, Applicant ) Ian Wilson, Counsel
Lafarge Canada Inc. and )
Christopher White, Respondents ) Daniel McDonald, Counsel
1This Application was filed on September 14, 2009, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), and involves allegations of discrimination on the basis of disability in employment.
2In his Application, the applicant alleges that he was subjected to discrimination when the respondents failed to accommodate his disability-related absence, placed unreasonable requirements on him regarding the provision of medical documentation in relation to his absence, and subsequently terminated his employment. The applicant alleges that, prior to terminating his employment on October 24, 2008, the respondents required that he provide a medical certificate from his doctor supporting his absence by no later than the close of business on October 23, 2008; however, he explained to the respondents that he was not able to see his doctor until November 6, 2008.
3In their Response to the Application, the respondents assert that the applicant had a number of issues related to his performance and attendance, and he never made them aware of any issue requiring accommodation. The respondents further allege that the applicant’s past record and his failure to provide reasonable medical evidence for his absences, in accordance with the collective agreement, gave rise to the termination of his employment. They assert that at no time did the applicant ever submit a medical certificate clarifying a need for any accommodation. They also assert that the applicant could not contact them because he was incarcerated for a variety of criminal offences.
4On December 12, 2011, the Tribunal received from the respondents a copy of the documents that they intend to rely on at the hearing, a witness list and witness summaries. On December 20, 2011, the Tribunal received from the applicant a copy of the documents that he intends to rely on at the hearing, and a witness list.
5On December 20, 2011, the Tribunal also received correspondence from the applicant, addressed to the Tribunal and the respondent, submitting that documents and witnesses of the respondents relating to the criminal charges that the applicant is facing must be excluded from the hearing and the Tribunal’s file, as they are completely irrelevant, highly inflammatory, and prejudicial. In particular, the applicant objects to the “will-says” of two police officers, and media and police reports relating to the charges. The applicant submits that his arrest and detention in police custody on October 23, 2008, played no part whatsoever in the decision to terminate his employment, which was confirmed by letter dated October 24, 2008. In further correspondence dated December 21, 2011, the applicant clarified that he was requesting a Case Assessment Direction, in accordance with Rules 1.6, and 1.7(n), (s), (v.1), and (w) of the Tribunal’s Rules of Procedure, concerning his objection to the respondents’ proposed evidence.
6On December 21, 2011, the Tribunal also received correspondence from the respondents, in response to the applicant’s December 20 and 21, 2011 correspondence, submitting that all of the evidence that the applicant asks to be excluded is entirely relevant, and that the applicant’s request is premature and speculative.
7In a Case Assessment Direction dated January 5, 2012, the Tribunal indicated that it would treat the applicant’s December 20 and 21, 2011 correspondence as a Request for an Order During Proceedings (“Request”). The respondents were directed to provide a response to the applicant’s Request, and the applicant was provided with an opportunity to file submissions in reply.
8In submissions dated January 12, 2012, the respondents assert that the entirety of their documentary record, as well as the evidence of the two police officers, is entirely relevant to central issues in dispute, which include:
(a) The applicant’s whereabouts on various dates he claims to have been ill or otherwise unable to attend work for medical reasons;
(b) The applicant’s whereabouts on various dates he claims to have been unable to obtain a medical note or otherwise seek medical care;
(c) The validity of the applicant’s representations to the respondents and the Tribunal;
(d) The credibility of the applicant;
(e) Lafarge’s exercise of managerial discretion (animus) pursuant to the collective agreement in respect of the applicant’s employment; and
(f) Lafarge’s knowledge of events impacting upon the applicant’s ability to satisfy the requirements of his employment and the collective agreement.
9The respondents submit that there is no principled or legal reason for excluding the evidence at issue. They submit that, in the course of the attendance management process, it became known that the applicant was not being forthcoming in his actual reasons for absence from work. They also submit that the applicant is asking the Tribunal to prohibit the respondents from calling evidence which speaks to the applicant’s whereabouts at material times and his alleged reasons for failing to see his doctor. The respondents submit that prohibiting them from relying on documentary evidence which informed their decision-making with respect to the applicant would effectively deprive them of a material aspect of their defence. With respect to the proposed evidence of the two police officers, the respondents explain that the officers are under instructions from the Ontario Provincial Police not to testify to the details surrounding the charges, and that these restrictions are dispositive of any concern about extraneous or inflammatory testimony related to the applicant’s criminal charges.
10The respondents submit that evidentiary issues ought to be addressed on a case-by-case basis at the hearing as the evidence is tendered, and that a blanket order in advance of the hearing would not be appropriate. The respondents submit that the proceedings under the Code are not about the criminal charges against the applicant, but the charges are a central feature of the factual matrix of the proceedings under the Code.
11In reply submissions dated January 17, 2012, the applicant submits that the information the respondents intend to introduce is not significantly relevant or probative, particularly when balanced against its greatly prejudicial and inflammatory effect. He submits that the respondents have provided no specific details with regard to relevance, but speak only in broad terms. He submits that the respondents do not indicate what specific bearing his arrest had with respect to his failure to appear for work on October 23, 2008, and the previous five work days, and the subsequent termination of his employment. He submits that the individual respondent did not know about his arrest and charges until an October 25, 2008 article appeared in the newspaper
12In further correspondence dated January 18, 2012, the respondents submit that a central issue in this proceeding is the applicant’s ability to comply with the direction to attend work on October 23 and 24, 2008, which he failed to do. The respondents submit that no explanation for these failures to attend work was ever provided to the respondents until receipt of the purported explanation provided in the Application. The respondents refer to an attached “Arrest Report” which indicates that police attended the home of the applicant at 8:02 a.m. on October 23, 2008, that he was arrested at 8:41 a.m., and that he was held in custody awaiting bail the following morning. The respondents submit that the applicant was in police custody, and his reasons for non-attendance at work and non-compliance with Lafarge’s requests for information have nothing to do with the Code.
13In further correspondence received by the Tribunal on January 19, 2012, the applicant submits that the respondents cannot demonstrate clearly how the information is relevant and probative, to an extent that would outweigh the potential prejudice to the applicant.
14In determining whether the contested materials are admissible, I must assess whether the information is relevant to a fact or issue in dispute in the hearing and whether the probative value of the information outweighs any prejudicial effects.
15The applicant alleges that the respondents failed to accommodate his disability-related absence. The respondents, on the other hand, assert that the applicant was absent from work for reasons unrelated to the Code. They submit that the two police officers they intend to call as witnesses will testify about the applicant’s whereabouts at material times, and not about the details of the applicant’s criminal charges. The respondents’ witness summaries for the police officers indicate that they will testify to the dates on which the applicant was under investigation, the dates his property was being searched, as well as the dates the applicant was in police custody and/or making court appearances.
16Based on the information provided by the parties to date, it appears that the police officers that the respondents intend to call as witnesses have information that appears relevant to issues in dispute in this Application. The proposed evidence of the police officers appears to relate the applicant’s whereabouts and ability to communicate with the respondents around the time that his employment was terminated. In addition, as the officers will not testify as to the details of the applicant’s charges, it does not appear that the probative value of their proposed evidence will be outweighted by any prejudice. In my view, it would not be appropriate to wholesale exclude the evidence of these witnesses at this point in time.
17With respect to the applicant’s Request that particular documents of the respondents be excluded from the hearing, the respondents have provided the applicant and the Tribunal with copies of documents that they intend to rely on at the hearing in compliance with Rule 16 of the Tribunal’s Rules of Procedure as “arguably relevant” information.
18In my view, in the particular circumstances of this case, the relevance and admissibility of the documentary evidence can best be determined during the course of the hearing, if and when the respondents seek to introduce the evidence.
19The applicant’s Request to exclude evidence is dismissed at this point in time.
Dated at Toronto, this 24th day of January, 2012.
”signed by”______
Brian Eyolfson
Vice-chair