HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pauline Wheeler
Applicant
-and-
ClydeUnion Pumps Canada Limited and Roman Kuszczak
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Wheeler v. ClydeUnion Pumps Canada Limited
WRITTEN SUBMISSIONS
Pauline Wheeler, Applicant
George Liebbrandt, Counsel
ClydeUnion Pumps Canada Limited and Roman Kuszczak, Respondents
Gregory J. Power, Counsel
1This is an Application dated July 19, 2012 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.
2In essence, the applicant alleges that she was demoted following her return from a medical leave for a workplace stress-related disability and then was subsequently fired shortly thereafter for reasons related to her disability and/or the medical leave she had taken. This is denied by the respondents, who state that the decision to terminate the applicant’s employment was made for work performance reasons prior to her departure on medical leave and without awareness of any disability, and was simply delayed due to the medical leave.
3This matter is currently scheduled to proceed to a hearing on October 7, 8 and 9, 2013.
4The purpose of this Interim Decision is to address the respondents’ requests for an adjournment of the hearing and for removal of the personal respondent.
REQUEST FOR ADJOURNMENT
5By letter dated August 12, 2013, counsel for the respondents requested an adjournment of the scheduled hearing on the basis that one of its key witnesses, Shakil Ahmed, who is the General Director at the facility where the applicant worked and is stated to have been directly involved in the decision to terminate her employment, is unavailable to attend the hearing because he and his wife are travelling to Saudi Arabia to attend a religious pilgrimage, which is considered one of the five pillars of the Islamic faith. It is stated that Mr. Ahmed was unaware of the scheduled hearing dates at the time he scheduled this pilgrimage. It is stated that he cannot re-schedule his trip, because: he has already paid a substantial, non-refundable deposit for the trip; the government of Saudi Arabia is inflexible regarding the arrival and departure dates for people participating in this pilgrimage; and he requires care arrangements for his children, elderly parents and a disabled brother which are not otherwise available.
6The respondents request either that the hearing be re-scheduled in its entirety, or that the parties proceed with the scheduled dates and then schedule a later date to hear Mr. Ahmed’s testimony.
7The applicant was invited to make submissions regarding the respondents’ request, and did so by letter dated August 19, 2013. The applicant vigourously opposes the adjournment request, on the basis that the respondents have been aware of the scheduled hearing dates since the Notice of Hearing was sent out on March 1, 2013. It is stated that the respondents at that time should have verified the availability of witnesses and responded to the Tribunal within the 14 days allotted for re-scheduling requests, rather than waiting until the verge of the hearing. The applicant further objects to the respondents’ alternative request that an additional hearing day be scheduled to hear Mr. Ahmed’s evidence, on the basis that this would delay the proceeding and create the possibility of mischief in light of an order excluding witnesses which is expected to be sought.
8While the parties have not yet filed their lists of witnesses, willsay statements and documents for the hearing, it appears that at the very least the applicant will need to testify on her own behalf and the respondents will have two key witnesses available, namely the personal respondent Roman Kuszczak and the human resources manager Garry Gallant, who both are stated to have been directly involved in the decision to terminate the applicant’s employment and the timing of that decision. Mr. Ahmed is stated to have been the third person involved in these discussions. While Mr. Ahmed’s evidence may not be necessary if the evidence of Mr. Kuszczak and Mr. Gallant turns out to be credible and reliable, I cannot say with certainty at this time that Mr. Ahmed’s evidence is not required for the hearing.
9While I agree with the applicant that it would have been preferable for the respondents to have ascertained Mr. Ahmed’s unavailability at an earlier time and that it would be preferable to complete the hearing in the three days currently allotted, the material before me indicates that Mr. Ahmed arranged this pilgrimage without having knowledge of the scheduled hearing dates. In my view, in these circumstances, it would be oppressive to require Mr. Ahmed to incur the substantial cost of cancelling his trip and being unable to perform an important element of his religious faith. It also in my view would be inappropriate to require the respondents to proceed to present the entirety of their defence without tendering Mr. Ahmed’s evidence.
10This does not mean that the hearing need be adjourned in its entirety. It is clear that we can proceed to hear the applicant’s case in chief, and the evidence of all respondent witnesses other than Mr. Ahmed. After the evidence of all other respondent witnesses has been completed, the respondents can make a decision about whether it is necessary to call Mr. Ahmed. If they decide that it is not necessary, then the hearing could be concluded within the already scheduled time. Otherwise, a hearing date could be scheduled at the earliest available time following Mr. Ahmed’s return in order to hear his evidence and complete the hearing. This is a matter that can be discussed at the hearing. I appreciate that the applicant intends to request an order excluding witnesses and that having a gap between witnesses providing their evidence creates the possibility of improper communications. But that is something that arises in many cases, and in my view is not a sufficient reason to compel Mr. Ahmed to cancel his pilgrimage or to force the respondents to proceed without his evidence.
11Accordingly, the respondents’ request for an adjournment is denied and the hearing shall proceed as scheduled on October 7, 8 and 9, 2013. At the conclusion of the evidence of all respondent witnesses other than Mr. Ahmed, the respondents can advise whether they still intend to call Mr. Ahmed to testify and if so, a further date will be scheduled to hear Mr. Ahmed’s evidence and complete the hearing.
REQUEST FOR REMOVAL OF PERSONAL RESPONDENT
12By Request for Order dated September 17, 2012, the respondents requested removal of the personal respondent as a party to this proceeding, on the basis of the principles articulated in Persaud v. Toronto District School Board, 2008 HRTO 31. This request is opposed by the applicant.
13I have considered the principles set forward in Persaud. As in many of these cases, the issue turns on the fourth factor, which is “whether any compelling reason exists 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 . . .”
14I appreciate the respondents’ acknowledgement that at all times Mr. Kuszczak was acting within the scope of his employment and that the corporate respondent is liable for his actions. However, on the basis of the allegations made by the applicant, it appears to me that it is alleged that Mr. Kuszczak’s individual conduct is a central issue in this proceeding. It is alleged that he expressly told the applicant that she had been demoted following her return from medical leave due to concerns about her “mental health”. It is alleged that he was the one who was responsible for deciding to terminate her employment. In this regard, I note that it is Mr. Kuszczak who signed the termination letter. I am well aware that Mr. Kuszczak denies making the statement alleged, and states that the decision to terminate the applicant’s employment was made jointly by Mr. Kuszczak, Mr. Ahmed and Mr. Gallant with approval from head office at a time when they had no knowledge of any disability. However, these are disputed matters of fact that will need to be determined on the basis of the evidence at the hearing.
15Accordingly, in my view, it would not be appropriate to remove Mr. Kuszczak as a personal respondent at this time.
ORDER
16For all of the foregoing reasons, I hereby make the following order:
a. The respondents’ request for an adjournment is denied and the hearing shall proceed as scheduled on October 7, 8 and 9, 2013. At the conclusion of the evidence of all respondent witnesses other than Mr. Ahmed, the respondents can advise whether they still intend to call Mr. Ahmed to testify and if so, a further date will be scheduled to hear Mr. Ahmed’s evidence and complete the hearing; and
b. The respondents’ request to remove Mr. Kuszczak as a personal respondent is denied.
Dated at Toronto, this 23rd day of August, 2013.
“Signed by”
Mark Hart
Vice-chair```