HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Terence Shaw

Applicant

-and-

Pepsico Foods Canada and Chad Birkoff

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: March 8, 2012

Citation: 2012 HRTO 493

Indexed as: Shaw v. Pepsico Foods Canada

INTRODUCTION

1This is an Application filed pursuant to section 34 of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address a number of preliminary issues raised by the parties in various Requests for Order During Proceeding (Requests) in advance of the hearing.

3The starting point for much of what follows are the allegations made in the Application. In the Application and Reply the applicant alleges generally that his right to be free of discrimination in employment on the basis of race and colour was infringed by the respondents. The particulars of this general allegation are as follows:

a. That between 1998 and 2000 the applicant found notes on his car indicating that he was not needed or wanted in the workplace.

b. That his immediate supervisor Chad Birkoff stated directly to Mr. Shaw that he was out to get him and has spoken publicly of his desire to have Mr. Shaw fired.

c. That prior to being a supervisor of the applicant Mr. Birkoff used to state to the applicant "Hey look at the head on that thing" in apparent reference to the different shape of the applicant’s head as a black man.

d. That Mr. Birkoff referred to the applicant behind his back as a nigger on June 30, 2010.

e. That Mr. Birkoff has yelled and sworn at the applicant.

f. That on five occasions the applicant was publicly humiliated in front of co-workers by being escorted out of PepsiCo premises for no valid reason.

g. That Chris Nicholls and Adam Gannon aided Mr. Birkoff in his harassment of the applicant by placing the applicant, at the instance of Mr. Birkoff under increased and sometimes constant surveillance in an attempt to uncover opportunities to discipline him. The applicant also alleges that these individuals participated in the unwarranted discipline of the applicant.

h. That Lisa Taillfer was aware of previous instances where the applicant was referred to as a nigger by Mr. Birkhof but she failed to provide this information when the applicant made his complaint and by her failure to do so aided Mr. Birkoff in his program of harassment.

i. That despite two internal complaints about these matters, the corporate respondent has not communicated the results of its investigations.

4The applicant elaborated on and clarified these allegations in a Reply filed after the respondents’ Response. The applicant alleged in particular that Mr. Birkhoff referred to the applicant as a nigger on another occasion and that another employee also used similar language in reference to the applicant and in his presence.

Removal of Personal Respondents

5The respondents in a Request for Order During Proceeding (“Request”) seek an Order removing the personal respondents as parties to this Application.

6Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

7The respondents submit: (i) that there is a Corporate Respondent that also is alleged to be liable for the same conduct as that alleged to have been committed by the Personal Respondents; (ii) that there is no suggestion that the Personal Respondents were acting outside of their employment and the Corporate Respondent has assumed responsibility for their conduct; (iii) there is no issue as to the ability of the Corporate Respondent to respond to or remedy the alleged Code infringement; (iv) that there is no compelling reason to continue the proceeding as against the Personal Respondents; (v) that there would be no prejudice caused to the Applicant if the Tribunal were to remove the Personal Respondents; and (vi) it is not necessary to permit the Applicant to continue the proceeding against the Personal Respondents in order to ensure a fair, just and expeditious resolution of the merits of the Application.

8The applicant submits that there are three aspects to his Application. First he says that the personal respondent Birkoff discriminated against him as a black man through his differential treatment of him in the form of unwarranted disciplinary action and as a result of Mr. Birkoff’s expressed sympathy for a former manager in referring to the applicant as a nigger. The second aspect of the complaint is that the three other individuals assisted Mr. Birkoff in the harassment of the applicant. Finally the applicant alleges that the investigation of his complaints with respect to these issues was inadequate.

9The applicant states that the individuals that he named as respondents are alleged to have taken specific actions against the applicant that makes their conduct central to the first two aspects of the Application and that orders against them personally may be appropriate. The applicant relied on the Tribunal’s Decision in Hinze v. Great Blue Heron Charity Casino, 2009 HRTO 1322 which focused its enquiry on the fourth paragraph of the “Persaud” factors above:

Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

10Having considered the submissions of the parties and the allegations as framed by the applicant, I find that the respondents’ Request should be granted in part. In considering the factors outlined in Persaud I find that they are largely satisfied in these circumstances at least in respect of three of the four individuals identified by the applicant. I do agree with the applicant that the key issue here is whether in these circumstances there are compelling reasons to continue the Application against the named individuals such as where the conduct of one or more of them is central to the allegations of discrimination and accordingly a remedial order against one or more of them would be appropriate. However in my view these considerations really only apply to Mr. Birkoff who, based on the allegations of the applicant was the central actor in this workplace conflict. It was Mr. Birkoff, if the applicant is correct, who instigated and/or initiated the preponderance of the allegations made by the application until the investigation stage. The allegations against the other three individuals are clearly less central to the dispute. If the allegations as they relate to Chris Nicholls and Adam Gannon are accurately described by the applicant these acts were done at the instance of Mr. Birkoff and otherwise appear to be activities well within the course of their normal duties even if in aid, advertantly or not, of an alleged pattern of harassment by Mr. Birkoff. The allegations as they relate to Lisa Taillfer which are in effect that she failed to pass on information supportive of the applicant’s internal complaints, are not central at all to the dispute, seem to relate to the manner in which she performed her duties and if sustained would be unlikely to merit an individual remedial award. On the other hand as the architect of the pattern of harassment as alleged by the applicant a remedial award as against Mr. Birkoff might conceivably be made.

11The respondents’ Request to remove Adam Gannon, Chris Nichols and Lisa Taillfer is granted and the style of cause amended accordingly.

Request for Particulars

12The respondents seek an Order requiring the applicant to further particularize the allegations in the Application. The applicant states that the Request for particulars is itself vague and unspecific and cannot be responded to. The applicant also states that the applicant has disclosed other particulars in his complaints to the corporate respondent and has cooperated throughout the employer’s investigation.

13I agree with the respondent. I have reviewed the Application, the letter of the applicant’s former representative which is appended to the Application as well as the lengthy Reply filed by the applicant and there are a number of allegations which are lacking significant particulars. For example, there is an allegation that the applicant has been subject to a course of unwarranted discipline. Some of these events are apparently documented and the subject of grievances filed by the applicant, but on the face of the pleadings in this proceeding it would be difficult to say, with some notable exceptions precisely what it is that the applicant is relying on. It may be as the applicant suggests that the respondent is aware of the particulars as a result of the internal complaints and grievances. That is somewhat beside the point. The other parties to the proceeding are entitled to know what is being relied on in this proceeding in order to adequately respond at the hearing. In addition to the respondents’ private interest in knowing the case they have to meet there is a public interest in the fair and expeditious adjudication of the case that is also engaged. For example as discussed below there may be a delay issue with respect to some of the allegations the applicant has made but as a consequence of the lack of particulars for many of the allegations it is impossible to deal with that issue at this stage. I find that in order to ensure a fair, just and expeditious adjudication of this Application that the applicant ought to further particularise the general allegations made in the Application and Reply.

Removal of Corporate Counsel

14The applicant filed a Request for an Order seeking the removal of counsel for the corporate respondent because it would be inappropriate for all of the respondents to be represented by the same counsel. The applicant states that the Application as it relates to the personal respondent and the corporate respondent are fundamentally different. The applicant claims that the individual respondent harassed and discriminated against him. The claim as against the corporate respondent is that they failed in their responsibility as an employer to maintain a discrimination free work environment when it failed to investigate the applicant’s complaints and failed to act fairly as between the applicant and the individual respondent.

15The applicant submits that the duty of the corporate respondent to act fairly as between the applicant and the individual respondent did not end with the filing of this Application and it cannot comply with that obligation while it shares counsel with the individual respondent.

16The applicant states that by sharing counsel the respondents interfere with the integrity of the administration of justice in these proceedings before the Tribunal as follows:

a. It inevitably skews the availability of evidence under the control of PepsiCo in favour of the individual respondent. This is detrimental to the ability of the Tribunal to accurately determine the substance of the matter before it and creates unfairness and a lack of natural justice in the proceedings before the Tribunal. It is also inconsistent with the obligation of PepsiCo to act fairly as between the applicant and its other employees.

b. it severely compromises the applicant’s right to confidentiality with respect to employment information in the possession of his employer in ways that would not occur if PepsiCo were to retain its own counsel in this matter.

c. It commits the corporate respondent to opposing the claim of harassment and discrimination regardless of new evidence such that it cannot uphold its ongoing obligations under the Code to respond to incidents that it believes are discriminatory.

d. It prevents the corporate respondent from settling this matter on terms that do not reflect the best interests of the individual respondent.

e. It places the respondents’ counsel in a conflict of interest as the interests of the individual respondent is in establishing that no harassment and discrimination has taken place whereas the corporate respondent’s interest is in establishing that it conducted an appropriate investigation and based on the available facts it made reasonable decisions and took reasonable actions.

17The applicant relied on the decision of the Tribunal in Bernard v. Lakehead University 2011 HRTO 977 and cases cited therein.

18The respondents submit that there is no basis to conclude, at this point, that an actual or perceived conflict of interest exists between the two respondents. The respondents also state that the applicant does not have standing to raise the issue of an actual or perceived conflict of interest as between the respondents. It is the right of the respondents (and counsel where appropriate) to determine whether a conflict of interest exists submit the respondents and it is not for the applicant to state what the respondents’ interests are.

19The respondents also argue that the central claim of the applicant relating to the responding parties’ access to information concerning the applicant is insufficient to justify the extraordinary remedy of depriving either of the respondents of the counsel they have chosen. The respondents also state that the concern about the respondents’ unfair access to information ignores the fact that the Tribunal’s Rules require that the parties produce to each other all arguably relevant documents subject to solicitor client privilege.

20I agree with the respondents. The Request of the applicant is extraordinary and unjustified in the circumstances. The implications of the applicant’s Request for the ability of respondents to access the Tribunal’s process are potentially profound and in my view would require similarly extraordinary circumstances before such an Order would be made.

21The applicant was not able to provide any authority for the proposition he has advanced here. The applicant does cite the Tribunal’s Decision in Bernard v. Lakehead 2011 HRTO 977 but that decision merely stands for the proposition that where counsel for a party is likely to be a witness and/or where there is an actual or the appearance of a conflict of interest the Tribunal may pursuant to its authority to control its process to prevent their abuse disqualify counsel from appearing on a matter. There is no indication that counsel for the respondents may be a witness in this case, nor is there any indication at this stage that there is an actual or the appearance of, a conflict of interest. The applicant’s Request is denied.

Applicant’s Request for Particulars

22The Applicant requests an Order requiring the respondents to make clear their positions on what occurred in a discussion that is said to have taken place on June 30, 2010 between Chad Birkoff and Terry Gill. The applicant asserts that during this discussion the respondent Birkoff used the word nigger in reference to the applicant and that its use was discriminatory in that context.

23The applicant states that further particulars are required because it is not clear from the Response filed whether the respondents are denying that the word nigger was used by Mr. Birkoff or are admitting that it was used but claiming that its use in the context was not discriminatory.

24The respondents state that they have provided sufficient particulars of their version of that conversation. I agree with the respondents. The respondents have provided a detailed response to this allegation of some several paragraphs. The response is not without ambiguities and does reflect the fact that the corporate respondent has been provided with the different perceptions of what was said by the two participants in the conversation. The Response indicates that Mr. Birkoff denies that he referred to the applicant as a nigger but did use the term in relating an event that had occurred some time prior where another employee had in a fit of anger referred to the applicant using the racial epithet. The respondents assert that Mr. Birkoff’s use of the word in the context was not discriminatory. The respondents’ position on this point is sufficiently clear and no Order for further particulars is required.

25The applicant had also raised other production issues with respect to discipline records of some of the individuals involved in this matter as well as the results of the corporate respondent’s investigations into the applicant’s internal complaints. It is not clear whether these remain issues and I make no Directions in that regard.

Delay

26As part of a Request for a Summary Hearing which also sought the dismissal of the Application as it related to two of the individual respondents, the respondent had previously sought the dismissal of a number of allegations on the basis that they were out of time. The Request for a Summary Hearing was dismissed by letter dated July 8, 2010.

27In correspondence dated March 5, 2012 the respondent indicated that in light of the Tribunal’s decision to not grant their Request for a Summary Hearing they would not pursue their Request that allegations be dismissed where they relate to events that occurred more than one year before the filing of the Application but subsequent to Mr. Birkoff becoming the Applicant's supervisor. However the respondents also reserved the right to object to such evidence being called and to make submissions at the hearing with respect to the probative value of such evidence, its admissibility and the weight to be given to it.

28Despite the respondents’ position and the Tribunal’s determination that it would not be appropriate to grant the Request for a Summary Hearing it remains that there are a number of allegations that appear to be out of time in that they are said to have occurred at times well prior to the filing of the Application. The concern arises most particularly in respect of the following allegations:

a. That between 1998 and 2000 the applicant’s found notes on his car indicating that he was not needed or wanted in the workplace.

b. That prior to being a supervisor of the applicant Mr. Birkoff used to state to the applicant "Hey look at the head on that thing" in apparent reference to the different shape of the applicant’s head as a black man.

29The Application was filed in March 2011. There are a number of other allegations made by the applicant that may fall outside of the one year time limit provided for in section 34(2) but consequent to the lack of particularity to many of them it is impossible to determine that at this time. However the two allegations set out immediately above appear to be well out of time.

30Despite the respondents’ position on this point, I find that it would be most fair, just and expeditious to deal with this issue at this point to the extent that I can. Accordingly I find that the allegations with respect to notes being left on the applicant’s car between 1998 and 2000 are out of time, a fact that the applicant concedes. The applicant states that he is not seeking an Order with respect to these allegations but that they will be relied upon to provide context for what followed which primarily concern events subsequent to Mr. Birkoff assuming a supervisory role over the applicant in February 2006. The applicant states that while section 34(2) may prohibit the Tribunal from making any Order with respect to untimely allegations, the section does not prohibit the calling of evidence with respect to such issues.

31While I accept the applicant’s general proposition that events beyond the one year time frame contemplated by the Code may be relied on in certain circumstances, I am not persuaded that it would be appropriate to entertain this allegation for any purpose. In coming to this conclusion I have considered a couple of factors: their timing prior to the events at the heart of this case which are apparently said to have occurred between sometime in 2006/2007 and 2010 as well as the fact that they are not connected to any of the individuals allegedly involved in the later harassment and discrimination. At the end of the day it seems to me unlikely that this allegation, if substantiated, will be of any assistance to the Tribunal in resolving the central issues in dispute. Such an allegation given its content and its timing in relation to the substantive issues in this case, is no more probative of what may or may not have taken place in this workplace, than the not disputed fact that racism exists in our culture and in particular in our workplaces. I find that it would be inappropriate to admit evidence with respect to this allegation.

32As regards the other allegation cited above, as with the other un-particularized allegations, further Orders may follow the applicant’s provision of particulars..

Directions

33In order to ensure the fair just and expeditious adjudication of this Application, the Tribunal makes the following Directions:

a. The applicant will deliver and file full particulars of the allegations made in the Application and Reply including identifying the individuals involved, the actions of which he complains, and the dates upon which these events are said to have occurred. These particulars will be delivered and filed within 21 days of the date of this Interim Decision.

b. The respondent’s Adam Gannon, Chris Nichols and Lisa Taillfer are removed from the Applicant and the style of cause amended accordingly

34I am not seized of this matter.