HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Nye Applicant
-and-
McMaster University and Saeid Habibi Respondents
INTERIM DECISION
Adjudicator: Mark Hart Date: August 22, 2013 Citation: 2013 HRTO 1440 Indexed as: Nye v. McMaster University
WRITTEN SUBMISSIONS
Timothy Nye, Applicant Stephen Moreau and Sharon Naipaul, Counsel
McMaster University and Saeid Habibi, Respondents George Avraam and Cherrine Crow, Counsel
1This is an Application dated September 19, 2011 and filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.
2The applicant has been a faculty member in the Department of Mechanical Engineering at the respondent University since 1999, and currently holds the rank of associate professor. He has been diagnosed with major depressive disorder, which has impacted his ability to produce research output or results. The applicant alleges that the respondents failed in their duty to accommodate his disability, engaged in direct and constructive discrimination against him because of disability, harassed him, failed to investigate his complaints of discrimination and harassment, and reprised against him. The applicant has been on medical leave since October 2010.
3A hearing in this matter is scheduled to commence in Toronto on September 16 to 18, 2013.
4On August 2, 2013, the applicant filed a Request for Order seeking to amend his Application to raise certain new allegations of discrimination, requesting certain orders relating to hearing management, and seeking permission to have a transcript of the hearing prepared.
5This Interim Decision addresses those requests.
Request to amend
6The applicant seeks to amend his Application to include further allegations of discrimination, as follows:
a. That the Career Progress / Merit (CP/M) awards given to the applicant in 2007 and 2008 constitute discrimination because of disability;
b. That any standard for research output applied by the respondent University amounts to constructive discrimination against the applicant because of disability; and
c. That statements alleged to have been made by Milé Komlen, the respondent University’s Director of its Office of Human Rights and Equity Services (“HRES”), at a meeting on September 23, 2010 that the applicant was failing to meet an essential job duty, specifically a production standard for research output, and ultimately could be forced out of his position are false and constitute discrimination against the applicant because of disability.
7In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend, and prejudice to the respondent. See Johnson v. Ontario (Government Services), 2013 HRTO 1013; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
8I will address each of the requested amendments in turn.
a) CP/M awards for 2007 and 2008
9The applicant asserts that at the time the Application was filed in September 2011, the applicant did not have sufficient evidence to justify an allegation that the CP/M awards given to him in 2007 and 2008 constitute discrimination because of disability, and that this allegation is only now being brought forward due to information obtained from documents produced by the respondents. However, in the submissions provided in support of this request, the applicant does not point to any specific document(s) that only now provide a basis for this allegation that were not previously known to him.
10There is no dispute that in the Application, the applicant specifically has raised an issue regarding his CP/M awards in 2009 and 2010 and has alleged that these awards constitute discrimination because of disability. However, as the Application is framed, the issues raised are tied to the personal respondent Dr. Habibi becoming the new Chair of the department and Dr. Wilkinson becoming the new Dean. At page 1 of the applicant’s answer to Question 8 of the Application, it is stated that the respondent University had been accommodating the applicant’s decrease in research output until 2009, when these two individuals assumed their new roles. It is further stated (at page 21) that relaxed research production standards for the applicant would have been a simple accommodation to implement that would not cause undue hardship, “indeed as the 2007-2009 period had demonstrated”.
11There also is recognition in the Application that while the applicant’s disability was not diagnosed until 2007, it “had negatively affected [his] research output in preceding years as well”: see answer to Question 9, page 1.
12As a result, on the face of the Application itself, there was an acknowledgement that the applicant’s disability was being accommodated prior to 2009 and an awareness that his disability had negatively affected his research output in prior years.
13In the Response to the Application, the respondents expressly put in issue the applicant’s CP/M awards from the three years prior to 2009, to show that the awards given to the applicant in 2009 and 2010 were consistent with his prior awards.
14In the applicant’s Reply filed on January 31, 2012, the applicant responded to the prior CP/M awards by stating that the applicant’s disability and its effect on his research output became known to the respondent University in 2007. It is alleged that since that time, the respondent University’s accommodation policy required the applicant’s work assessment to reflect that fact, but that this was never followed by the then Chair of the department, Dr. Zaida: see para. 69. It is further alleged that when Dr. Zaida made the 2007 CP/M award, the then Dean, Dr. Elbestawi, was also aware of the applicant’s disability and its impact on his work, yet did not ensure that the accommodation policy was followed.
15Accordingly, at least as early as the time the Reply was filed in late January 2012, the applicant clearly was in a position to raise the allegation that the 2007 and 2008 CP/M awards were discriminatory. And yet no steps were taken to amend the Application to raise this allegation for over a year and a half, and about a month and a half prior to the commencement of the hearing in this matter. No justifiable explanation has been provided for this delay.
16Further, the allegation that is sought to be added to the Application would extend the persons alleged to have been responsible for the discrimination beyond the new Chair and the new Dean, back to the former Chair and the former Dean. This in my view would have a significant impact on the pending hearing in this matter, as the respondent University would now be required to go back to events that occurred some five and six years ago and tender evidence from individuals who were not identified in the Application as persons whose actions caused the applicant to experience discrimination.
17In my view, having regard to the nature of the proposed amendment, the timing of the request to amend, and the prejudice to the respondent if this amendment were allowed, it would be grossly unfair to allow the Application to be amended to add this allegation at this late stage. Accordingly, the applicant’s request to amend the Application to add this allegation is denied.
18This ruling is not intended to restrict the applicant from giving evidence about any impact that his disability may have had on his research output in years prior to 2009 and any role that decreased research output may have played in his CP/M awards in these prior years. However, any such evidence will be regarded as contextual and perhaps as an explanation for lower than average CP/M awards in prior years, and not as the basis for any finding of discrimination against the respondent arising out of the 2007 and 2008 CP/M awards.
b) Research output standard
19The applicant notes that in their Response, the respondents have stated that the applicant was unable to meet the essential duties of his position: see Response, answer to Question 12(d). He further relies upon the allegation that at a meeting on September 23, 2010, Mr. Komlen stated the applicant was failing to meet the essential duty of meeting a production standard for research output, and would be removed from his position if this continued.
20The applicant states that prior to receiving the respondents’ productions, he assumed that the respondent University did have a standard that it eventually would disclose. However, it is stated that no document produced by the respondent University reveals such a standard, although some notes of a meeting on July 28, 2010 make reference to “quantitative measures”, including number of publications, research dollars, and number of students.
21It is alleged that any standard for research output may not be directly discriminatory on a prohibited ground, yet has an adverse impact on persons with disabilities, like the applicant, whose research output has been impaired because of their disability.
22Once again, it appears to me that all of the information required to raise this allegation was in the applicant’s possession at the time he filed the Application in September 2011. At that time, he was aware of Mr. Komlen’s alleged statements at the September 23, 2010 (which are included as part of the chronology at pp. 5-6 of his answer to Question 8). Further, at the time the Response was provided to the applicant in early January 2012, he further knew that the respondents formally were taking the position that he could not perform the essential duties of his position. The only thing that has happened since then is that the respondents’ productions are said not to include any specific research output standard. In my view, that is not a sufficient justification to have waited over a year and a half and until the verge of the hearing to seek to amend the Application to include this allegation. Accordingly, the applicant’s request to amend his Application to add this allegation is denied.
23At the same time, it is clear from the Application that an allegation of constructive discrimination is raised in relation to an actual policy developed within the Faculty of Engineering, namely the Policy on Balancing Teaching, Research and Service Loads. Specifically, it is alleged that paragraph 5 of this policy, which states that “tenured faculty who are less involved than most of their peers in research can be deemed by their department chair to have additional capacity and may therefore be assigned additional teaching responsibilities above the departmental norm…”, amounts to constructive discrimination against the applicant because of disability. To the extent that any “standard” for assessing whether the applicant’s research output was lower than most of his peers was applied under the policy to increase the applicant’s teaching load, then this is an issue squarely raised in the Application and about which I will need to hear evidence and submissions.
c) Alleged statements by Mr. Komlen
24Finally, the applicant seeks to amend his Application to raise an allegation that statements alleged to have been made by Mr. Komlen at a meeting on September 23, 2010 that the applicant was failing to meet an essential job duty, specifically a production standard for research output, and ultimately could be forced out of his position are false and constitute discrimination against him because of disability.
25As noted above, these statements appear on the face of the Application, and particularly at pages 5-6 of the chronology that forms part of the applicant’s answer to Question 8. Despite this, no allegation was raised in a very lengthy and thorough Application that these alleged statements in and of themselves amount to a violation of the Code. No new information has been identified by the applicant as a justification for waiting almost two years and until the verge of the hearing to raise this as an additional allegation. All that is stated is that the respondents’ productions did not include any formal standard for research output or relevant documents held by Mr. Komlen. It is hard for me to understand how an absence of additional information can provide a reasonable basis to justify the extraordinary delay in the applicant raising this allegation.
26Accordingly, the applicant’s request to amend the Application to add this allegation is denied.
Hearing management
27The parties have agreed to the following hearing management matters, which are hereby adopted by the Tribunal:
a. The hearing will be bifurcated into separate liability and remedy phases;
b. The parties will file clear statements of issues, positions and material facts on which they will rely;
c. The Tribunal will mark documents submitted by the parties as exhibits at the outset of the hearing and will not require individual identification of each document by a witness. The parties will be afforded an opportunity to raise any issue as to the authenticity of any specific document(s).
28With regard to point (a) above, the liability stage of the hearing will deal only with the issue of whether the applicant’s rights under the Code have been violated and not with any issue regarding remedy if a violation were to be found. At a separate and later stage, and only if I first find a violation of the Code, I will establish a process to deal with any issue regarding remedy
29With regard to point (b) above, the applicant has requested that these written statements stand in place of oral opening statements, to which the respondent has objected. I am not a fan of opening statements, as by the time the hearing commences, I have thoroughly reviewed all material filed by the parties and am well aware of the issues and the parties’ positions. At the same time, if a party insists on making an opening statement, I will not stop them. I will, however, advise the parties that prior to the hearing, I will carefully have reviewed not only all material in the file, but also the written statements filed in advance of the hearing, and so do not need the parties to read from this material to me. Accordingly, any oral opening statement that either party may wish to make should merely supplement the written statement and should be appropriately brief. In addition, I may have questions arising from the written statements filed by the parties, and if so, will raise these at the outset of the hearing.
30The applicant shall serve and file his written statement of issues, positions and material facts on which he will rely by September 6, 2013, and the respondents shall serve and file theirs by September 12, 2013.
31With regard to point (c) above, I will repeat what I standardly say at the start of any hearing, which is that by marking the books of documents as exhibits, I am accepting the authenticity and admissibility of all documents or items included, and that they were prepared on or about the dates indicated and say what they say, subject to any objection raised about any specific document or item included in these materials. I do not need any witness to take me to any particular document solely for the purpose of identifying the document or reading from the document. I assure all parties that by the time the hearing starts, I will have read every single page of all material submitted and will have a very good familiarity with the contents. Of course, if a witness has evidence to provide regarding the context surrounding a particular document or in addition to what is stated in the document, then that is fine.
32By Case Assessment Direction (“CAD”) dated August 8, 2013, I invited submissions on the matter of having the witnesses affirm the truth of the contents of their will-say statements, and allowing supplementary examination-in-chief to address matters of credibility or that are not covered in the statements. I noted that, where I have used such a process, I invite opposing counsel to raise any objection(s) to any matters set out in the will-say statement at the time it is put before the witness for affirmation.
33The parties have agreed to this procedure with regard to the majority of witnesses, with the exception of the applicant and the personal respondent. It is stated that these two individuals are key witnesses and there are substantial discrepancies between their evidence, such that they should be examined-in-chief and cross-examined on the entirety of their evidence. I agree that these two individuals are key witnesses and that there are substantial discrepancies as between them. However, I do not understand why they nonetheless cannot also follow the procedure of affirming the truth of the contents of their witness statements. This serves the purpose of at the very least having a clear statement on record as to each of these individual’s evidence-in-chief, and saving the time required to cover background, chronology and other non-contentious matters. Where there are discrepancies in the evidence, these are matters that go to credibility upon which I would want to hear their oral evidence even if it is set out in the will-say. This procedure would not place any restriction on cross-examination. Accordingly, I direct that the same procedure will be followed with the evidence of the applicant and the personal respondent as with all other witnesses.
34In my CAD, I also asked for submissions on the matter of setting reasonable time estimates for supplementary examination-in-chief and cross-examination of the witnesses, and invited the parties to provide such estimates in their submissions in response to the CAD.
35On the basis of the time estimates provided by the parties, it would take at least 13 days to complete the hearing of evidence in this case, not including any reply evidence or final submissions and not including any further evidence that may be required on the issue of remedy. That, in my view, represents an extraordinary allocation of time and Tribunal resources which is not proportional to the matters at issue. Accordingly, I have reduced the time estimates for the witnesses in accordance with the following table:
| Supp ex-in-chief | Cross-ex | |
|---|---|---|
| Timothy Nye | 1 day | 1 day |
| Linda Johnston | 2 hrs | 1 hr |
| Saeid Habibi | 1 day | 1 day |
| David Wilkinson | 2 hrs | 3 hrs |
| Wanda McKenna | 2 hrs | 2 hrs |
| Samir Ziada | 1 hr | 1 hr |
| Milé Komlen | 2 hrs | 2 hrs |
| Marilyn Lightstone | 30 mins | 30 mins |
| David Weaver | 30 mins | 30 mins |
| Greg Wohl | 30 mins | 30 mins |
| Joe McDermid | 30 mins | 30 mins |
36Even with this schedule, it will still take some eight days to complete these witnesses. I question the necessity for the evidence of Dr. Lightstone and Dr. McDermid, and ask the parties to consider whether the proposed evidence can simply be agreed upon. I also am aware that no witness statement or report yet has been filed for Dr. Johnston, who I understand is the applicant’s treating psychologist, and the time estimate for cross-examination of this witness may need to be adjusted.
37In setting time estimates for examination and cross-examination, these are estimates only and are not intended to limit or cut off relevant evidence. If counsel or a party gets to the end of the allotted time, then I would hear from counsel what further areas of evidence they believe they need to cover to complete the examination or cross-examination and I would rule on what further evidence I need to hear.
38In terms of the order of witnesses, I will expect to hear first from the applicant and to complete his evidence on September 16 and 17. I will then expect to hear from Dr. Johnston on September 18. The respondents should be prepared to proceed with their first witness on September 18 as soon as Dr. Johnston’s evidence has been completed. In relation to the respondents’ witnesses, I will expect to hear first from Dr. Habibi. Given the issues of credibility that arise in this proceeding, I will be making an order excluding witnesses, which obviously does not apply to a party to the proceeding. Accordingly, as Dr. Habibi is entitled as a party respondent to remain in the room for the evidence of all other witnesses, I wish to hear his evidence untainted by the evidence of the remaining respondent witnesses.
39Any further dates as required to complete this hearing will be scheduled prior to recessing on September 18. All parties should bring their calendars on that day and be aware of the availability of proposed witnesses, so that further hearing dates can be set at that time. For the parties’ information, my availability for continuation dates as of September 18 will commence on December 2, 2013, so the parties should be aware of their availability in December 2013 and January and February 2014.
40As per my usual practice, I will be offering mediation / adjudication to the parties at the outset of the hearing. The parties should discuss this option and be prepared to advise at the hearing whether this would be useful.
Request to transcribe hearing
41The applicant has asked that, at his own expense, he be allowed to provide a court reporter to produce an official transcript of the hearing, which would be provided to the respondents and the Tribunal. The respondents do not object to this request.
42Accordingly, the applicant’s request is granted.
ORDER
43For all of the foregoing reasons, I hereby make the following order:
a. The applicant’s request to amend his Application to add further allegations of discrimination is denied;
b. In terms of hearing management:
i. The hearing will be bifurcated into separate liability and remedy phases,
ii. The parties will file clear statements of issues, positions and material facts on which they will rely, with the applicant to serve and file his written statement by September 6, 2013, and the respondents to serve and file theirs by September 12, 2013,
iii. The Tribunal will mark documents submitted by the parties as exhibits at the outset of the hearing and will not require individual identification of each document by a witness. The parties will be afforded an opportunity to raise any issue as to the authenticity of any specific document(s),
iv. All witnesses, including the applicant and personal respondent, shall affirm the truth of the contents of their will-say statements, and supplementary examination-in-chief will be allowed to address matters of credibility or that are not covered in the statements. Opposing counsel will be invited to raise any objection(s) to any matters set out in the will-say statements at the time they are put before the witness for affirmation, and
v. The parties shall comply with the time estimates for supplementary examination-in-chief and cross-examination of the witnesses as set out in paragraph 35 above;
c. The applicant’s request to have a court reporter transcribe the hearing, and to provide a copy of the transcript to the respondents and the Tribunal all at his own expense, is granted.
Dated at Toronto, this 22nd day of August, 2013.
"Signed by"
________________________________
Mark Hart Vice-chair