Vanstone v. Mid-Huron Landfill Site Board, 2012 HRTO 694

B E T W E E N:

Susan Vanstone Applicant

-and-

Mid-Huron Landfill Site Board, Town of Goderich, Township of Ashfield-Colborne-Wawanosh, Municipality of Huron East, Municipality of Bluewater, Municipality of Central Huron, Township of Huron-Kinloss, Jim Shropshall and Paul Sherban Respondents

A N D B E T W E E N

Susan Fehr Applicant

-and-

INTERIM DECISION

Adjudicator: Ian R. Mackenzie Date: April 5, 2012 Citation: 2012 HRTO 694 Indexed as: Vanstone v. Mid-Huron Landfill Site Board

APPEARANCES

Susan Vanstone, Applicant D. Beth Walden, Counsel

Mid-Huron Landfill Board and Paul Sherban, Respondents Gregory Stewart, Counsel

Jim Shropshall, Respondent Karl S. McNamara, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of sex, sexual harassment and sexual solicitation or advances.

2In a decision issued on November 22, 2011 (2011 HRTO 2104) the towns and townships that make up the unincorporated Mid-Huron Landfill Site Board were added as respondents. For the purposes of this decision, I will refer to the Mid-Huron Landfill Site Board and the constituent towns and municipalities as "Mid-Huron".

3The hearing of this Application was scheduled to commence on January 18, 2012. On January 17, 2012, the respondents requested an adjournment of the hearing on the basis that the Application should be joined with a related Application of Susan Fehr (2010-06381-I) against Mid-Huron, Paul Sherban (respondents in this Application) and Brian Bushey (not a respondent in this Application).

4The request that these two applications be heard together and the request for an adjournment were addressed at the commencement of the hearing. After submissions of the parties I ruled that the two applications should be heard together (the reasons are below). Ms. Vanstone then agreed to the request for an adjournment. In the circumstances, I granted the adjournment.

5I also heard submissions on the exclusion of witnesses and the intended testimony of a witness. This Interim Decision addresses these issues as well.

Consolidation of two Applications

6The applicant Susan Fehr was to be called as a witness for the applicant Susan Vanstone. The respondents submitted that in reviewing the witness statement of Ms. Fehr it became clear that Ms. Fehr would be testifying about matters contained in her own Application. The respondents submitted that this could lead to inconsistent findings on credibility if the applications proceeded separately. They also submitted that Ms. Fehr would be able to learn of the respondents' strategy and this would give her an unfair advantage.

7The applicant submitted that it was the Tribunal's practice to only grant adjournments in exceptional circumstances. The respondents waited too long to request an adjournment. The applicant submitted that the two applications were different and there was no concern about inconsistent findings. The application of Ms. Fehr covered some of the same time period, but also continued for some months after the termination of Ms. Vanstone's employment. She also submitted that there was a related proceeding ongoing in Ms. Fehr’s application (a complaint under the Employment Standards Act) and it was not certain if the Application would proceed.

8The two applications contain allegations about sexual harassment in the workplace and a failure of Mid-Huron to properly investigate those allegations. While there are differences between the two applications, there are sufficient similarities to justify hearing the two applications together. Some of the key incidents referred to in the applications involve both applicants. It is also clear that evidence about the investigations will involve some overlap. In the interest of hearing economy and efficiency, it is appropriate to hear the two applications together. It is also important that there not be inconsistent findings on the harassment allegations when both applicants were present, especially since many of the findings of facts in the two applications will require an assessment of credibility.

9Ms. Fehr’s Application has not yet been scheduled for hearing. Once the file is ready to be scheduled, dates for a hearing of both applications will be set in accordance with the Tribunal's practices for setting continuation dates.

Exclusion of witnesses

10Larry McCabe is the Clerk Administrator for the Town of Goderich and the Secretary of the Mid-Huron Landfill Site Board. Mr. McCabe is to be a witness for Mid-Huron. He is also instructing and advising the counsel for Mid-Huron. The applicant objected to the presence of Mr. McCabe in the hearing room during the evidence for the applicant.

11Mid-Huron submitted that as secretary to Mid-Huron, Mr. McCabe was the most knowledgeable about the events during the relevant period. Mr. McCabe is instructing the counsel for Mid-Huron and has a right to be present in the hearing room for the whole of the proceeding. Mid-Huron stated that it would be calling Mr. McCabe as its first witness.

12The applicant submitted that Mr. McCabe was directly involved in the termination of employment of Ms. Vanstone and in the conduct of the investigations of harassment in the workplace. In light of these circumstances, the applicants would be unduly prejudiced by allowing him to hear their testimony. There are other representatives of Mid-Huron who could advise and instruct counsel. There is no prejudice to the respondents since the hearing will be adjourned and there is ample notice.

13Mid-Huron submitted that the members of the Mid-Huron Board are elected officials who set policy. It is Mr. McCabe who carries out the policy of the Board.

14An exclusion of witness order is generally appropriate where credibility is an issue. In this case, an exclusion of witness order will be ordered. The issue for me to determine is whether an individual who is advising and instructing counsel and who is also a witness can be exempted from the exclusion of witnesses.

15In Capocci v. York Catholic District School Board, 2009 HRTO 1956, the adjudicator stated (at para. 39) that a party is free to select its own advisor to attend the hearing, even if that person will be appearing as a witness. It is not appropriate for the Tribunal to determine who the advisor is, as was suggested by the applicant. Mid-Huron has committed to calling Mr. McCabe as its first witness and in the circumstances of these applications, this is appropriate. I therefore order that Mr. McCabe will be allowed to attend the hearing, notwithstanding the witness exclusion order.

Intended testimony of Natalie Giebschrecht

16The respondent Jim Shropshall intends to call Natalie Giebschrecht as a witness. The applicant objected to the calling of this witness. I heard submissions from the parties on the intended testimony of this witness. After hearing those submissions, counsel for the respondent stated that he would be submitting a revised witness statement. That statement was submitted to the Tribunal on February 17, 2012. The applicant made no additional submissions after receiving the revised statement.

17Ms. Giebschrecht did not work at Mid-Huron at the same time as Mr. Shropshall. She was a summer student at the landfill site. She did work at the landfill site at the same time as Brian Bushey, a respondent in Ms. Fehr’s Application. Most of the summary of intended testimony of this witness relates to Ms. Fehr. The only reference to Ms. Vanstone in the revised witness statement is the following: “Ms. Fehr and Ms. Vanstone frequently engaged in spreading negative rumours around the site about other employees.”

18The applicant submitted that the proposed witness had no knowledge of the interactions between the applicant and Mr. Shropshall. The applicant stated that the proposed evidence was not relevant, was inappropriate character evidence, was highly prejudicial and should therefore not be admitted.

19Mr. Shropshall submitted that the proposed witness was employed at the landfill site when Ms. Vanstone and Ms. Fehr were employed there. She is therefore able to provide evidence on their conduct in the workplace. He submitted that credibility will be a key issue in the proceeding, and the evidence of the witness will deal with the credibility of the applicant.

20The witness has no direct evidence relating to the allegations against Mr. Shropshall. The intended evidence about Ms. Vanstone spreading negative rumours about other employees is evidence of bad character. Generally, evidence of this type is not admissible: Modi v. Paradise Fine Foods Ltd., 2005 HRTO 25 at para. 3. The issues in this Application are the allegations of sexual harassment and the response of Mid-Huron to the allegations. The fact, if established, that an applicant was a source of conflict in the workplace is not relevant to these issues.

21It is premature to rule on the admissibility of the intended testimony as it relates to Ms. Fehr. Witness statements for her Application have not yet been filed. Any objections to the intended testimony of this witness about Ms. Fehr will be addressed at the commencement of the consolidated hearing.

22Accordingly, the evidence of Ms. Giesbrecht will not be admissible with regards to Ms. Vanstone’s Application.

23The Tribunal makes the following orders:

a. The Applications in files 2010-04512 and 2010-06381-I will be heard together;

b. The exclusion of witnesses will be ordered and Mr. McCabe will be exempted from the order;

c. Mr. McCabe will testify first, at the commencement of the case for the respondents;

d. Ms. Giesbrecht will not be permitted to testify in relation to the Application of Ms. Vanstone; and

e. any objections to the intended testimony of Ms. Giesbrecht related to Ms. Fehr will be addressed at the commencement of the consolidated hearing.

24I am not seized.

Dated at Toronto, this 5th day of April, 2012.

”signed by”

Ian R. Mackenzie Member