Arnob Bose v. Ontario Realty Corporation, 2012 HRTO 32

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arnob Bose

Applicant

-and-

Ontario Realty Corporation, David Glass, H.R. Goss, Jennifer Lau, Jim Curran, Judy Satram and Kathy Bull

Respondents

INTERIM DECISION

Adjudicator: Geneviève Debané

Date: January 6, 2012

Citation: 2012 HRTO 32

Indexed as: Bose v. Ontario Realty Corporation

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 12, 2010. In the Application, the applicant alleges discrimination and harassment with respect to employment based on colour, ancestry, ethnic origin, sex, family status and age. The respondents have filed a Response denying the allegations in the Application and the applicant has filed a Reply. This matter is scheduled for hearing in Toronto on February 1, 2 and 3, 2012.

2On December 19, 2011, the applicant filed Requests for Orders During Proceedings, the first requesting that the Tribunal issue security measures (the “Security Request”), the second compelling the respondents to disclose certain documents (the “Production Request”), and the third is a request to adjourn the scheduled hearing (the “Adjournment Request”).

3On December 22, 2011, the Tribunal issued Interim Decision 2011 HRTO 2300 (the “December Interim Decision”), which amongst other things directed the respondent to respond to these Requests.

4On January 3, 2012, the Tribunal received the respondents’ response to the applicant’s Requests. This Interim Decision deals with the applicant’s three Requests.

5On January 5, 2012, the applicant filed an “Addendum to Form 10-Supplemental Information” (the “Addendum”).

The Security Request

6The applicant has asked in the Security Request that the Tribunal order the respondents:

1. not to contact him or his family, his employer or associated companies or perceived employers in any way because he may be pressured to withdraw the Application;

2. that the respondents’ lawyers only contact him via email and to deliver materials only at the alternate mailing address provided by the applicant; and

3. that the lawyers not engage in a “witchhunt for information or perceived dirt” in order to threaten more people associated with the applicant.

7In support of the Security Request the applicant states at paragraph 4:

“The respondent(s) had threatened to kill the Applicant (including his cat) while he worked for Ontario Realty Corporation. The Respondent(s) threatened to kill witnesses, explained how they were going to try to kill them, and then engaged in a course of action similar to their stated method of attack. Since these actions were also taken against the Applicant, the Applicant logically believes that the Respondent(s) tried to kill him. The Applicant now understands that many of the witnesses are having their jobs threatened by the Respondent(s). The Respondents are corrupting this HRTO process so that the Applicant cannot call his witnesses or they will be too afraid to testify. A temporary request to create a safer environment will not protect these people nor their jobs on a permanent basis.”

8The applicant attached to the Security Request, a series of emails between him and counsel for the respondents because she tried to call him at work to discuss an outstanding production issue in order to avoid having to file a Request for Order. There are no other documents or information filed in the Security Request in support of the remedies sought.

9In their submissions the respondents assert that these allegations are “offensive and entirely without merit or basis in fact”. Further, the respondents state that the applicant has provided no particulars or factual support and that to make such false allegations constitutes, at a minimum, an abuse of the Tribunal’s process. The respondents request that the Tribunal direct that the applicant refrain from making allegations of this nature unless he provides proof of same, including full particulars of the facts that he relies upon.

10In the Addendum, the applicant provides some particulars of the alleged threats which include:

1. A respondent stated to him in the fall of 2008, “If I can’t have you, no one can”. Though the applicant was unsure if this was a threat to kill only him or his family, he interpreted this as a clear death threat;

2. A respondent told the Applicant, “We’re going to work them until they drop dead”. The applicant believes that this is evidence that some of the respondents were trying to kill him by assigning him excessive hours;

3. He told management at his exit interview that people were bullying and threatening workers;

4. He “believes” that two witnesses were terminated after they complained;

5. The applicant notes that the “death threats” have not been retracted; and

6. The Security Request was made very late in the process because counsel for the respondents sought to “track down his specific location” in December 2011.

11I have reviewed the pleadings, the submissions of the parties and the documents that they intend to rely upon at the hearing. The allegations made by the applicant are bald assertions without any reasonable factual underpinnings. The emails that the applicant submitted with his Security Request do not establish that there is indeed a security concern. It appears that counsel for the respondents wrote an email to the applicant requesting production of documents. The applicant asked for further time to produce the documents in order to avoid the costs of further litigation. Counsel for the respondents tried to call the applicant at work to discuss when and whether there were any objections to the documents. At first when she was transferred to the applicant’s alleged telephone line it was disconnected. When she tried to call back later she was informed that the applicant does not work there. Counsel then sent an email asking the applicant to call her back at her office to discuss the matter. The applicant did not call her back. Ultimately, the respondents did file a Request for production of documents and the Tribunal issued orders with respect to same in the December Interim Decision.

12There is nothing extraordinary about the actions of counsel. The exchange of emails between the parties is courteous and civil. There is nothing to support a finding that counsel behaved inappropriately. As such, there is absolutely no evidence that would support any of the remedies sought in the Security Request. Further, the orders sought could severely restrict the respondents’ ability to defend themselves in the proceedings. Even if I had the discretion to make such orders, it would only be in the most extraordinary and compelling of circumstances, which do not exist here.

13Having reviewed the “particulars” provided by the applicant in the Addendum in support of his allegations that death threats have been made against him I find that there is no reasonable basis to conclude that the applicant’s security is at risk. With respect to his allegation that he “believes” that two witnesses were terminated from employment after they complained, he does not identify what they complained about or the underlying rationale for his belief. Further, having reviewed a summary of their intended evidence, there is no information that supports that they even have relevant information to these proceedings.

14In the case of Felix v. Shoppers Drug Mart, 2010 HRTO 2179, the respondent had made a request to the Tribunal that sought orders prohibiting the applicant from communicating directly with or harassing any employees of the respondent and an order prohibiting the respondent from attending at any locations of the respondent. After reviewing its powers under the Statutory Powers and Procedures Act and the Tribunal’s Rules, the Tribunal concludes at paragraph 14:

The Tribunal has the power to make orders controlling the abuse of its process and ensuring that the Tribunal process is free from abusive comments by any participant. However, the broad orders requested by the respondent that the applicant not communicate with SDM employees and not attend at SDM premises go beyond the Tribunal’s role in controlling its own process and relate to the general interaction between the parties. The Tribunal does not have general injunctive powers. Accordingly, I decline to make the first two orders requested by the respondent.

15I find that the orders sought by the applicant in these circumstances go beyond the Tribunal’s role in controlling its own process and in effect the applicant seeks injunctive relief from the Tribunal. Further, there is no reasonable basis to award any of the remedies sought be the applicant.

16For all of the foregoing reasons, I decline to make any of the orders sought by the applicant in the Security Request.

The Production Request

17In the Production Request, the applicant seeks that the respondents disclose a number of documents including:

1. Organizational charts of all employees as of January 1, 2011, March 1, 2011, and December 19, 2011;

2. T4s and tax returns for the respondents for the year 2009, 2010 and 2011;

3. Letters to any respondents regarding the loss of their job or change in their position;

4. A list of employees that formerly worked in the Finance department that have since lost their jobs or changed positions;

The applicant asserts that it has come to his attention that not all of the following documents have been produced so he further requests the following:

5. All emails not already provided between the respondent Lau and himself;

6. Communication of the results of the investigation done by the respondents;

7. Job description of the CFO as at March 2008 and October 2008;

8. Employment offers to the respondent Curran and all employment offers to the respondent Gross;

9. Résumé submitted by the respondent Lau when she applied to work for the respondent;

10. Internal reports from the Auditor General of Ontario for the Corporate Respondent for the years 2003 to 2011; and

11. Critical Incident Reports for any employee in the Finance staff that suffered a critical incident (under the Occupational Health and Safety rules) between the applicant’s last day of work (February 2009) and December 19, 2011.

18In support of the Production Request the applicant states at paragraph 4:

“The requested information is very relevant to the Applicant’s case.

There may have been continued harassment of other individuals similar to those faced by the Applicant after he left ORC because some people at ORC did not know the extent of the problems.

The Applicant understands that ORC/IO has threatened to terminate or ‘restructure’ staff who would be witnesses. The applicant needs to know who has been let go because he is unable to call witnesses that are still employed at ORC/IO due to the threat of job loss.

The Applicant was called confidentially after leaving ORC and notified that some employees have suffered critical incidents.”

19In support of the disclosure of the documents sought at paragraph 17.1 to 17.4 the applicant states:

“It has come to the attention of the Applicant that the Respondent ORC no longer exists. This affects the employment status of the respondents. This is key since the Applicant would consider a different course of action in Tribunal proceedings and his requested remedy if the Respondents had lost all of their jobs.”

20In support of the disclosure of documents, the applicant has attached a copy of an article from a January 2011 Globe and Mail about the merger between Ontario Realty Corporation (“ORC”) and Infrastructure Ontario (“IO”). The applicant also states with respect to the production of the documents at paragraph 17.11:

“It has come to the attention of the applicant that many ORC/IO staff have suffered critical injuries/illness and were unable to continue to work without taking off sick time or leave. The Applicant believes that this is related to the death threats made by some of the respondents.”

21The respondents object to the entirety of the Production Request. The respondents note that a number of documents sought are with respect to the merger (which was the product of government legislation) that occurred in June 2011, more than two years after the applicant’s resignation from his employment. Further, the respondents object to the production of any employment information with respect to the employment and termination of employment of the individual respondents, including their current financial status. The respondents assert that all of the arguably relevant documents sought at paragraph 17.5 and 17.6 have been disclosed and that the applicant has not identified any missing documents. With respect to the documents sought at paragraph 17.11 the respondents assert the reasons stated by the applicant for their disclosure is absurd and there is no evidentiary foundation to support the applicant’s allegations.

22In the Addendum the applicant asserts that he “believes that the ORC has been restructured/merged/taken over because of the Applicant’s application to the HRTO”. He also believes that others may have lost their jobs because of this Application. He also believes that this is why the documents sought at paragraph 17.10 (the internal General Auditor reports) are relevant and necessary to verify if this belief is true.

23As previously stated at paragraph 10 of the December Interim Decision, the Tribunal has the power to order a party to produce any document that is arguably relevant to the proceeding. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal.

24Having reviewed the reasons provided by the applicant for the production of documents I find that none of the documents sought (except for the documents at paragraph 17.5 and 17.6) are arguably relevant to the proceedings. The issue before this Tribunal is whether the applicant has been subjected to harassment and/or discrimination in employment on a Code-related prohibited ground. The Tribunal does not have jurisdiction to decide issues of general unfairness, workload issues, and/or general allegations of fraud unless they are somehow Code-related.

25Further, a number of the documents sought were created over two years after the applicant’s resignation from employment and are with respect to the corporate merger; they do not appear to have a nexus to any Code-related allegations. The issue before the Tribunal is whether the applicant was subjected to harassment and/or discrimination during the course of his employment and whether his Code-related rights have been infringed. None of the documents sought by the applicant relate to this issue. His assertion that his former employer was merged because of his complaint to the HRTO is entirely speculative and even if true is wholly irrelevant to these proceedings.

26With respect to the production of employment-related documents, including résumés, offers of employment, termination letters and tax documents of the individual respondents, they are not relevant to any issues in the pleadings. The applicant has not provided any reasonable explanation as to why these bear any nexus to the issues in dispute. In his Addendum, for example, he wishes to have Ms. Lau’s résumé for the purposes of determining whether she could have been given another position after the merger and intends to call her successor as a witness. Having reviewed the brief summary of this witness’ intended evidence it is not clear to the Tribunal how this evidence is relevant to the issues.

27With respect to the critical injury reports of accidents and/or illnesses that allegedly occurred after the applicant’s resignation, again these are based on speculative allegations. Further, I find that they do not relate to any Code-related allegations in the Application.

28With respect to the disclosure of a current list of employees, which is sought for the purposes of determining if the witnesses are still employed with the corporate respondent, I do not accept the applicant’s bald allegations that these potential witnesses could be harmed by the respondents. Further, I note that the applicant can easily determine if these witnesses are still employed by the corporate respondent by asking them.

29Finally, the applicant has not provided any support for his allegation that the respondent has not provided all arguably relevant documents with respect to the documents sought at paragraph 17.5 and 17.6.

30For the foregoing reasons the applicant’s Production Request is denied in its entirety.

The Adjournment Request

31The applicant in support of his Adjournment Request states that there are a number of outstanding submissions and that time is required to review these. The respondents object to the adjournment of the hearing.

32The Practice Direction on requests to adjourn or reschedule reads as follows:

The HRTO discourages requests for adjournments outside the 14-day period to request rescheduling of a hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the HRTO will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the HRTO will not grant adjournments, even when all parties consent.

Where a party seeks to adjourn a previously scheduled mediation or hearing, they must contact the Registrar as soon as the need arises. They must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the mediation or hearing.

The party making the request should contact the Registrar and provide the exceptional circumstances supporting the request and any alternative agreed upon dates. Where the request is on short notice, the party must contact the Registrar by email or fax.

33In Vallentyne v. Royal Canadian Legion, 2009 HRTO 660, at para. 4, the Tribunal explained why, even when there is consent, an adjournment of a scheduled hearing will not be granted absent exceptional circumstances:

The Tribunal is committed to the fair, just and expeditious resolution of proceedings before it. It expects to receive thousands of applications each year. The Tribunal has a responsibility to ensure that public resources are used effectively to meet the demands of all parties before the Tribunal. Therefore, when an adjournment request is made, it is not only the interests of the parties to the particular proceeding must consider, but the fact that Tribunal time reserved for the resolution of those parties’ dispute will no longer be used. For that reason, among others, the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournments indicates that even adjournment requests made on consent of the parties more than five days after the hearing is scheduled may be denied. The Tribunal has balanced the interests of parties in having hearings scheduled according to their and counsel’s availability with these broader interests by requiring that a party advise within five days that they are unavailable, and providing that requests for adjournment will not otherwise be granted, absent exceptional circumstances.

34The applicant has not demonstrated any exceptional reasons and therefore his Request for an Adjournment is denied.

Orders

35The Tribunal makes the following Orders:

1. The applicant’s Security Request is denied;

2. The applicant’s Production Request is denied;

3. The applicant’s Adjournment Request is denied; and

4. The applicant must deliver and file submissions with respect to the respondent’s Request for an Order which was filed on January 3, 2012, by no later than January 17, 2012.

Dated at Toronto, this 6th day of January, 2012.

“Signed by”

Geneviève Debané

Vice-chair