Brian Fernandes v. Meloche Monnex Financial Services and Stephanie Sorenson, 2012 HRTO 256

Human Rights Tribunal of Ontario

B E T W E E N:

Brian Fernandes

Applicant

• and-

Meloche Monnex Financial Services and Stephanie Sorenson

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: February 6, 2012

Citation: 2012 HRTO 256

Indexed as: Fernandes v. Meloche Monnex Financial Services

Introduction

1This Interim Decision is further to the Case Assessment Direction of October 26, 2011 which in turn was further to a telephone conference call with the parties on October 20, 2011. The earlier Case Assessment Direction directed the parties to provide further submissions and information regarding proposed witnesses and documents.

2The applicant alleges that he has been unfairly treated during his employment. To succeed in this Application, the applicant will have to prove not just that he has been treated unfairly but also that the unfair treatment is related to discrimination on the basis of sexual orientation and ethnic origin, the Code-protected grounds identified in the Application.

3Some of the applicant’s allegations relate to specific comments and events that he believes demonstrate direct discrimination on the basis of sexual orientation and ethnic origin, for example, sexual and racial slurs. However, most of the allegations of unfairness are not clearly and directly related to sexual orientation or ethnic origin. The applicant suggests that these other instances of alleged unfair treatment were in some way motivated by discrimination on the basis of sexual orientation and/or ethnic origin.

4The applicant proposes to call a large number of co-workers and former co-workers. As directed in the earlier Case Assessment Direction, he has provided more detail about his reasons for wanting to call the witnesses and what he anticipates they will say.

5The respondents submit that the additional information in respect of most of the proposed witnesses is still not sufficient. The respondents further submit that much of the evidence from the proposed witnesses is not relevant or should not be admissible for other reasons.

6The parties have also made further submissions regarding the applicant’s request for documents. The respondents have agreed to provide copies of the original hand-written documents that have previously been disclosed. The respondents continue to object to the other disclosure requests on the grounds that the other requested documents are either not relevant or confidential in nature and relate to people who are not parties to the Application.

Documents

7The documents that the applicant continues to want disclosed relate to Vicky Devakos and records concerning other employees.

Vicky Devakos

8The applicant seeks disclosure of documents regarding the end of the employment relationship between Vicky Devakos and the corporate respondent. The respondents point out that the applicant has not provided any substantiated basis for his belief that the end of the employment relationship was related in any way to him. Ms. Devakos is not a party to the Application. It is likely that the documents about her contain confidential information. Since the applicant has not provided any basis for his belief that the documents in fact have anything to do with him or the issues in the Application and given that such documents are inherently personal, I am satisfied that the respondents are not required to disclose documents relating to the end of Ms. Devakos’s employment at this time.

Interviews with Linda Wilson

9The applicant seeks documents concerning one on one interviews between Linda Wilson and all employees in the administration department. He says that these documents will show that no other employee was the subject of one on one interviews involving the entire department.

10These documents would also be inherently personal to those involved. The documents in themselves would be completely irrelevant as their only purpose is to show that the applicant was subject to a process that was different than the process for others. I am satisfied that this matter can be explored through oral evidence and that it is not appropriate to require disclosure of the contents of any one on one interviews of any other employee.

Documentation about behavioural correction therapy

11The applicant wants disclosure of documents about other employees who may have been sent for “behavioural correction therapy” so that he can determine if he was the only one who was identified as having behavioural problems.

12This matter too can be explored through testimony at the hearing. The records of any other employee are inherently personal in nature and their contents of no relevance to the issues in the Application.

Security records

13The applicant wants disclosure of records of the security firm used by the corporate respondent for the period January 2009 to December 2010 concerning the applicant and two other facility technicians. The purpose is to counter suggestions that he spent most of his time on the 8th floor and to show bias in the investigations conducted by the respondents.

14This is far reaching request that, at least at this stage of the process, appears to me to be only tangentially related to the issues in the Application. I am satisfied that the respondents are not required to disclose these records at this time.

Witnesses

15It is apparent that all of the proposed witnesses that the applicant proposes to call are intended to support or corroborate the applicant’s allegations. As noted above, it is not at this stage clear how much of the proposed testimony will relate to allegations that relate to sexual orientation and/or ethnic origin or only to more general allegations of unfairness which may or may not have anything to do with the applicant’s Code-protected rights. I also appreciate the respondent’s concern that it is not clear what specific events the proposed witnesses are expected to corroborate.

16At this stage of the proceedings, it is difficult for me to determine with certainty what witnesses will be necessary to ensure a fair, just and expeditious hearing and to allow me to determine the issues in the Application. I am satisfied that it is appropriate to postpone this determination until I have heard evidence from the applicant and the personal respondent.

Directions

17Pursuant to section 43 of the Code, which sets out the Tribunal’s powers and Rule 1.7 of the Tribunal’s Rules of Procedure, I direct as follows. The Tribunal will schedule a three-day hearing. In those three days, I will hear evidence from the applicant and the personal respondent. The applicant will give his testimony first. The respondents counsel may then cross-examine the applicant. The personal respondent will then give her evidence in chief followed by cross-examination by the applicant. I will intervene and participate in the questioning as necessary to ensure a fair, just and expeditious process.

18After hearing these two witnesses, I will hear submissions about the need to hear from other witnesses. Such additional witnesses will be heard on later dates and no witnesses other than the applicant and the personal respondent are required to attend for the three days that will be scheduled at this time.

19If additional witnesses are heard from, the applicant and the respondents may ask that the applicant and/or the personal respondent be recalled as witnesses to deal with any matter raised by the additional witnesses.