Kakan v. 2067598 Ontario Inc. aka Voysus Group Inc., 2012 HRTO 2198

Human Rights Tribunal of Ontario

Between:

Ruby Kakan Applicant

-and-

2067598 Ontario Inc. aka Voysus Group Inc. Respondent

Interim Decision

Adjudicator: Eric Whist Date: November 23, 2012 Citation: 2012 HRTO 2198 Indexed as: Kakan v. 2067598 Ontario Inc. aka Voysus Group Inc.

Appearances

Ruby Kakan, Applicant ) Richard Miller, Counsel Voysus Group Inc., Respondent ) Kashif Raza, Representative

1This Application was filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of sex. The Application alleges that the applicant, a telephone sales associate, had her employment terminated in November 2009 when the respondent learned that she was pregnant. The respondent denies this allegation, submitting that the applicant’s employment was terminated because of her poor sales record.

2The Tribunal issued a Case Assessment Direction (CAD) on October 3, 2012 identifying a number of preliminary issues to be addressed in advance of the hearing scheduled for January 24 and 25, 2013. A case conference call was held on November 16, 2012 to discuss these preliminary issues. This Interim Decision provides direction to the parties following this case conference.

Properly Named Respondent(s)

3The applicant has requested that the name of the respondent be amended. In addition, during the conference call the issue arose as to whether the proper respondent(s) have been named. The named respondent, Voysus Group Inc., acknowledges that since the filing of the Application the respondent has changed names, from Voysus Group Inc. to 2067598 Ontario Inc.

4During the conference call the respondent indicated that it continues to be known internally and to its customers as Voysus Group Inc. The respondent indicated a willingness to amend the style of cause to 2067598 Ontario Inc. aka Voysus Group Inc. as requested by the applicant. However, the respondent also acknowledged that the change in corporate name arises from the fact that another corporate entity has bought the assets of the respondent.

5The applicant requests that the respondent provide clear documentary evidence to establish the current ownership of what was Voysus Group Inc. so that the proper respondent can be named. The applicant is of the view that the corporation that bought the assets of Voysus may need to be added as a respondent. The respondent is of the view that this corporation does not need to be named, and does not see the need to disclose detailed ownership documents. It maintains that it is committed to accepting liability in the event that any violation of the Code is found and it notes that the CEO of Voysus Group Inc. has made a written commitment to do so in a recent email to the Tribunal.

6The applicant submits that this written commitment to accept liability may not ultimately be legally binding. It submits that this situation is comparable to one the Tribunal addressed in Barter v. Bata, 2009 HRTO 995, where the Tribunal ordered the disclosure of corporate documents in order to clarify what entities should be named as respondents to an Application.

7In order to resolve this dispute, it was agreed that within two weeks the applicant will file a Request for an Order During Proceedings (“RFOP”) with the Tribunal for the production of documents that, in the applicant’s view, would establish what respondent or respondents should be named. The respondent will respond to this request. In the interim the style of cause will be amended to indicate that 2067598 Ontario Inc. aka Voysus Group Inc. is the respondent.

Bifurcation

8The applicant has filed a RFOP asking that the Tribunal bifurcate the hearing so that it would determine liability first and, only if it found the respondent liable for a violation of the Code, would it then continue the hearing to consider appropriate remedies. The applicant indicated that this request was originally made when the applicant was not clear she would be able to obtain documents related to her claim for damages in time for the hearing.

9The applicant is now of the view that she will have time to obtain the needed documents and is no longer requesting bifurcation. The hearing will not be bifurcated.

The Applicant’s Request for Documentation

10The applicant is of the view that the respondent has not disclosed the documents it was required to pursuant to the Tribunal’s Interim Decision, 2012 HRTO 1687, issued on September 7, 2012. The respondent acknowledges that it has not disclosed many of the requested documents but submits these documents never existed or no longer exist. The respondent submits that this is because 1) many of the requested documents date from 2009 before the respondent began to keep more fulsome records; 2) the respondent does not keep documents related to customers it no longer has including, of relevance in this case, the customer the applicant was serving; 3) the respondent has changed servers which has resulted in the respondent not keeping certain information; and 4) the respondent does not keep emails from employees who no longer work for the respondent which would include emails from the applicant and the Director of Operations who fired the applicant. The respondent submits that it has already disclosed what arguably relevant documents it had when it first received the Application.

11Under the circumstances I will not order the respondent to produce documents that it has stated that it does not have possession of. As the applicant has indicated, she may cross-examine the respondent’s witnesses on what documents may or may not exist and may or may not be available.

12The applicant makes a new request for documents from the respondent. The respondent has already disclosed a list of employees who were doing a similar job to the applicant and their sales statistics for the month of November 2009. The applicant requests copies of the Records of Employment (“ROE”) the respondent may have issued for any of these named employees. The applicant submits the ROEs are arguably relevant because they might indicate whether the respondent consistently terminated the employment of employees with comparable sales to the applicant. The respondent opposes this request, on the basis that it is overly broad. It submits that it should only have to disclose ROEs issued to the employees whose sales were as low as the applicant’s.

13The respondent is ordered to disclose the ROEs it has issued for all employees on the November 2009 list with a recorded “upsells” of less than 70%. This is to be done no more than 45 days prior to the hearing on January 24 and 25, 2013.

14The applicant allegedly had “upsells” of approximately 28%. However, the respondent maintains in its Response that minimum upsells of 65% were required of its salespersons. Consequently, I am of the view that the respondent should disclose, on the basis that they may be arguably relevant, ROEs for employees on the November 2009 list with “upsells” of less than the 65% minimum as well as ROEs for employees with upsells from 65% to 70% for comparison purposes. The respondent is also directed to indicate which of the employees with less than a 70% upsell rate it has continued to employ (and hence not issued an ROE for).

15A finding that documents are arguably relevant for production does not mean that such documentation will be admissible at a hearing (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. 41). It is still open to the respondent to argue at the hearing the admissibility and weight of some or all of these documents if the applicant indicates that she wishes to rely on them as evidence.

The Respondent’s Request for Documentation

16The respondent requests that the applicant disclose medical documents to confirm that she was four months pregnant, as claimed, at the time her employment was terminated. The respondent requests that the applicant be directed to disclose medical documents including psychiatric assessments and counselling records to demonstrate her psychological and emotional state in the period after her employment was terminated. The respondent further requests documents to show the degree to which the applicant has mitigated her damages in the period following the termination of her employment.

17The applicant submits that she will disclose a birth certificate for her child as evidence of her pregnancy (and its timing), that she will disclose available medical documents about her psychological and emotional state after the termination of her employment and that she already has disclosed all the documents she has that are arguably relevant to her efforts to mitigate. The Tribunal orders the applicant to disclose the birth certificate and further medical documents described above no more than 45 days prior to the hearing on January 24 and 25, 2013.

Scope of the Testimony to be Given by the Respondent’s Witnesses

18The respondent’s witness statements indicate that it intends to call two witnesses, Tanya Smith and Yachna Bajaj, who will provide testimony about how the respondent treats pregnant employees. According to these witness statements, Tanya Smith’s will testify to her personal experience as a pregnant employee who was provided with maternity leave and other accommodations while working for the respondent. Yachna Bajaj’s intended testimony will include her assessment of the corporate respondent’s practices with pregnant employees and her experiences as a female employee with the respondent’s Director of Operations, the person who terminated the applicant’s employment.

19The applicant opposes this testimony arguing that it is not relevant to the decision the Tribunal needs to make in relation to what happened with the applicant. The applicant submits that this evidence does not involve direct evidence of the facts of the case and is more comparable to similar fact or good character evidence. The applicant relies on Cugliari v. Telefficiency Corporation, 2006 HRTO 7, and Rubio v. A Voz-Portuguese Canadian Newspaper Ltd. (1997), C.H.R.R. Doc. 97-245 (Ont. Bd. of Inq.). The respondent submits that this testimony is relevant in that it outlines the respondent’s workplace practice for dealing with pregnant staff and should be allowed.

20I will allow Ms. Bajaj and Ms. Smith to testify about the respondent’s maternity leave and related policies and practices. I am of the view that this information is relevant. At a minimum, I need to understand what maternity leave policies and practices the respondent may have had in place at the time of the termination of the applicant’s employment. However, I am of the view, at this stage, that hearing evidence about how these policies and practices may have been applied in other individual circumstances, for example, in Ms. Smith’s case is not likely relevant for determining what happened with the applicant and the Director of Operations. I am also of the view that testimony about how the Director of Operations may have treated Ms. Bajaj as a female employee is not likely relevant. I will allow the respondent to make further arguments on the exact scope of Ms. Bajaj and Ms. Smith’s testimony at the hearing if it is of the view that evidence beyond outlining the respondent’s maternity leave policies and procedures is required.

21In summary,

1. The name of the respondent is amended to 2067598 Ontario Inc. aka Voysus Group Inc.

2. The applicant has two weeks in which to file a Request for an Order During Proceedings for the production of documents to determine what respondents should be on the style of cause.

3. The hearing will not be bifurcated.

4. The respondent is ordered to disclose ROEs for all employees identified on its previously disclosed November 2009 sales chart with a 70% or less “upsell” rate. The respondent will also indicate which of these employees continue to be employed by the respondent. The respondent will disclose this information no more than 45 days prior to the hearing on January 24 and 25, 2013.

5. The applicant will disclose a birth certificate for her child and medical documents related to her emotional and psychological state following the termination of her employment. The applicant will disclose this information no more than 45 days prior to the hearing on January 24 and 25, 2013.

6. Yachna Baja and Tanya Smith will be allowed to testify about the respondent’s maternity policies and practices. The respondent may make further submissions at the hearing if it wishes these witnesses to be able to provide further testimony about personal experiences they have had with the respondent.