Manoso v. Rock-Tenn Company, 2012 HRTO 704

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Manoso

Applicant

-and-

Rock-Tenn Company (Alliance Display Company of Canada), Kannan Srivarapathy, Mike Huber and Denise Alstrom

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: April 10, 2012 Citation: 2012 HRTO 704 Indexed as: Manoso v. Rock-Tenn Company

1This Interim Decision is written in response to a Request for Order filed by the respondents on March 29, 2012.

Request for copy of audio recordings

2The respondents request that the applicant provide them with a copy of certain audio recordings she made of discussions with various individuals.

3In materials filed with the Tribunal in preparation for the hearing in this matter, the applicant filed transcripts of two discussions that she had with various management individuals at the respondent company. The actual audio recordings were not disclosed to the respondents as the applicant states that she is unable to make copies. The applicant has made these audio recordings available at her representative’s office in Mississauga for respondents’ counsel to review in advance of the hearing, and will bring these audio recordings to the hearing on April 19, 2012.

4The respondents’ position is that they are entitled to receive copies of these recordings in advance of the hearing, that they should not be required to travel to Mississauga, and that there is reason to doubt the accuracy of the transcripts of these recordings.

5I have reviewed the transcripts of these recordings, and it appears to me that the contents of these recordings will be of marginal relevance to the matters at issue in this proceeding. I accept the statement of the applicant’s representative that she is unable to make a copy of these recordings. I cannot order someone to do something that cannot be done.

6I also appreciate that respondent counsel does not want to travel to Mississauga to review these recordings, and is entitled to review them prior to being required to cross-examine the applicant or calling respondent witnesses.

7In my view, the appropriate solution to this conundrum is for me to hear the applicant’s evidence-in-chief, including her evidence as to the discussions that she recorded, without requiring respondent counsel to cross-examine her before being afforded a reasonable opportunity to review the audio recordings, which can be done at the Tribunal’s hearing centre. To facilitate this, the applicant is directed to bring to the hearing centre on April 19, 2012, not only the tape of the audio recordings but also a machine that is capable of playing these recordings.

8In addition to herself, the applicant has indicated an intention to call six witnesses in support of her case in-chief. None of these six witnesses was a party to the discussions that were recorded. Accordingly, it seems to me, after the applicant’s evidence in-chief is completed, we can defer her cross-examination and proceed to hear the evidence of the remaining six witnesses, including cross-examination. By the time the evidence of these six remaining witnesses is complete, it is my belief that respondent counsel likely will have had a reasonable opportunity to review the audio recordings. If not, we can address this at the hearing and adjourn cross-examination of the applicant and the calling of evidence by the respondents to a new date. Whether or not this will be necessary is a matter to be determined at the hearing.

9The respondents also raise the issue that the applicant has disclosed transcripts of audio recordings that are described at file #13 and file #19, which begs the question of what if any audio recordings may be described as files #1 to 12, #14 to 18, and #20 and up. The applicant states that only files #13 and #19 are relevant to this proceeding. In my view, given the strange numbering accorded to these audio recordings, it would be appropriate to order the applicant to provide a list of all audio recordings from #1 to the highest numbered recording, together with the date of the recording, the length of the recording, a short description of what was recorded and whose voices are recorded. If a particular audio recording was not made in the workplace or of a discussion with any employee of the respondent company, then the recording may simply be described as “non-work related”. This list shall be provided to the respondents and filed with the Tribunal by no later than April 13, 2012. If the respondents are of the view that any listed recordings are arguably relevant to the matters at issue in this proceeding, they shall so advise the applicant by April 17, 2012, and she shall bring a copy of these audio recordings to the hearing on April 19, 2012, at which time I will hear submissions as to arguable relevance and make any appropriate order regarding disclosure.

Paul Manoso’s complaint

10Part of the applicant’s allegations in this case is that she experienced reprisal for assisting her son Paul Manoso, who also worked at the respondent company, with a human rights complaint that he filed against the company and the same personal respondents in April 2008. This complaint was resolved by confidential minutes of settlement entered into on or about December 8, 2008.

11The respondents take the position that the applicant should not be permitted to re-litigate Mr. Manoso’s complaint in the context of this proceeding. The applicant states that she has no intention of re-litigating Mr. Manoso’s complaint. Accordingly, in my view, the parties are in agreement on this point.

12The respondents have asked for an order that the scope of the evidence in this proceeding regarding Mr. Manoso’s complaint be restricted to three points: that he brought a complaint on a certain date; that the applicant assisted him with his complaint; and that his complaint was resolved by settlement. I am not prepared at this time to make an order that is as restrictive as the respondent is requesting. For example, it may be relevant for me to know the manner in which the applicant was assisting her son with his complaint, whether she attended meetings or had discussions about his complaint with any company representative or personal respondents, and other things.

13In my view, the real issue here is that the respondents do not want to be called upon to respond to evidence from Mr. Manoso regarding the allegations made in his human rights complaint. I agree that this is not the purpose of this proceeding, and is not relevant to the allegations raised by the applicant. The applicant’s representative appears to agree with this as well.

14What may be causing some confusion is that the applicant intends to call Mr. Manoso as a witness in support of her allegations, and the description of his proposed evidence includes that he “will testify to his human rights complaint”. This is compounded by the fact that Mr. Manoso’s actual complaint was filed by the applicant as part of the material to be relied upon at the hearing. To the extent that Mr. Manoso’s testimony and complaint are directed solely to proving the fact that Mr. Manoso filed a human rights complaint against the respondents (and one other individual) on April 7, 2008, alleging discrimination in employment because of disability, then to that extent this evidence is relevant to the matters at issue. But the actual substance of Mr. Manoso’s allegations are not in my view arguably relevant to the applicant’s allegations, and I will not hear evidence from Mr. Manoso or any other witness regarding the substance of his allegations nor will I require the respondents to respond to these allegations.

15On the other hand, Mr. Manoso’s proposed evidence also includes his evidence regarding how his mother was treated at the respondent company prior to the filing of his human rights complaint, evidence as to the role played by his mother in relation to his complaint, and his observations of the impact on his mother. All of this evidence is relevant and admissible in support of the applicant’s case, without getting into the substance of the allegations in Mr. Manoso’s own human rights complaint.

Other matters

16The applicant has no objection to the respondents’ request for witness Bill Aitcheson to testify by teleconference, and he will be permitted to do so.

17The applicant has no objection to the respondents’ request to call an additional witness, Natalie Colella, if required, and accordingly she will be permitted to testify if required.

18Finally, the applicant has no objection to the filing of the CV for Dr. Neal Sutton, which is permitted and may be adduced as evidence at the hearing.

ORDER

19For the foregoing reasons, the Tribunal makes the following order:

a. The applicant is directed to bring to the hearing on April 19, 2012, the tape(s) of the audio recordings and a machine that is capable of playing these recordings;

b. By April 13, 2012, the applicant shall provide to the respondents and file with the Tribunal a list of all audio recordings from #1 to the highest numbered recording, together with the date of the recording, the length of the recording, a short description of what was recorded and whose voices are recorded. If a particular audio recording was not made in the workplace or of a discussion with any employee of the respondent company, then the recording may simply be described as “non-work related”.

c. By April 17, 2012, if the respondents are of the view that any listed recordings are arguably relevant to the matters at issue in this proceeding, they shall so advise the applicant and she shall bring a copy of these audio recordings to the hearing on April 19, 2012.