HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aldeen Morgan
Applicant
-and-
Herman Miller Canada Inc. and Corrado Fermo
Respondents
Interim Decision
Adjudicator: Geneviève Debané
Indexed as: Morgan v. Herman Miller Canada Inc.
1This Application is made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Three days of hearing have already been held in this matter. An additional four days of hearing are scheduled to commence in Toronto on April 11, 2012.
2On February 17, 2012 the Respondent filed a Request for Order During Proceedings (the "Request"), requesting that Ruth Kershaw be permitted to testify and providing her proposed will-say statement. The respondents also request to be permitted to rely on two additional documents which are spreadsheets which the respondents assert were created with respect to a proposed restructuring which indicates that the applicant was going to be laid off during the next year.
3On March 13, 2012 the applicant filed a Form 11 Response opposing the proposed testimony of Ruth Kershaw, on the basis that the respondent did not comply with the Tribunal's Rules and that her evidence is not relevant to the Application. With respect to the proposed documents the applicant takes the position that the respondents are changing their position as to why the applicant's employment was terminated mid-hearing. The applicant takes the position that he is therefore prejudiced. The applicant also takes issue with respect to the admissibility, reliability and authenticity of the two documents.
4The Tribunal has considered the respondents' Request, and in short, finds that the proposed evidence of Ruth Kershaw is relevant and that any prejudice to the applicant can be addressed by the Tribunal during the hearing. The Tribunal will give more reasons for this ruling in its final Decision.
5With respect to the two additional documents sought to be introduced the Tribunal will address issues about their admissibility, relevance and weight at the hearing.
6The Tribunal Orders the following:
a. Ms. Kershaw will be permitted to testify, any issues about the scope of her evidence and prejudice to the applicant arising out of the late notice of her testimony will be dealt with at the hearing;
b. Within seven days of the date of this Interim Decision the respondents must:
i. Deliver and file unredacted copies of the two documents they intend to rely on, so that the names of the other individuals are identified; and
ii. Provide revised witness statements for any and all witnesses who will refer to either or both of these documents during their testimony; and
iii. Advise whether an electronic version of the information can be produced and/or exists which can be produced to the applicant.
c. The parties must be prepared to address all of the issues raised in the Request for Order and Response thereto at the hearing including, the authenticity, reliability and admissibility of the two documents.
Dated at Toronto, this 19th day of March, 2012.
"Signed by"
Geneviève Debané
Vice-chair