Nicholson v. Bombardier Transportation Canada Inc., 2013 HRTO 1567

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Nicholson

Applicant

-and-

Bombardier Transportation Canada Inc.

Respondent

-and-

Canadian National Railway Company

Intervenor

-and-

Teamsters Canada Rail Conference, Division 660

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 18, 2013

Citation: 2013 HRTO 1567

Indexed as: Nicholson v. Bombardier Transportation Canada Inc.

1This Interim Decision addresses the request to quash a summons made by Canadian National Railway Company ("CN").

The Application

2The Applicant filed an Application in which she alleged that she was discriminated against because of sex and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code"). By Interim Decision, 2012 HRTO 2062, the Tribunal dismissed the Application as against CN because it fell under federal jurisdiction. The Tribunal also dismissed, under s. 45.1 of the Code, the parts of the Application against Bombardier Transportation Canada that related to the discipline and termination of the applicant.

3As noted in the Tribunal's Interim Decision, the two remaining issues to be addressed in the hearing are the following:

a. Whether Bombardier discriminated against the applicant because of sex (or record of offences) with respect to the extent of its efforts to have CN lift its ban against the applicant entering onto its property;

b. Whether Bombardier discriminated against the applicant because of sex (or record of offences) by failing to provide the applicant with Commuter Train Operator work on rail lines not owned by CN.

4On August 1, 2013, the intervenor, Teamsters Canada Rail Conference, Division 660 ("union"), provided a witness statement for two witnesses, including Doug Van Cauwenbergh, CN's Manager, Labour Relations. The witness statement for Mr. Van Cauwenbergh states that he would testify about his duties and responsibilities and the reasons why CN continues to ban the applicant from working on CN tracks. By letter dated August 2,2013, CN indicated it did not have any documents to produce for the upcoming hearing.

5Upon the union's request, the Tribunal issued a summons to Mr. Van Cauwenbergh to appear at the hearing and to bring "all documents, including e-mails, notes, letters, correspondence, etc. in relation to Karen Nicholson".

6In response to a Tribunal Case Assessment Direction, the union provided a more detailed witness statement for its other witness but did not provide a more detailed witness statement for Mr. Van Cauwenbergh. However, it has indicated to CN that it still wishes to have Mr. Van Cauwenbergh appear under summons.

7CN requests that the summons to Mr. Van Cauwenbergh be quashed. It submits that Mr. Van Cauwenbergh's testimony, as described in the union's witness statement, would be irrelevant to the two remaining issues identified above. CN notes that the applicant's claim against CN was dismissed on jurisdictional grounds. As such, CN argues that the reasons why it has banned the applicant from working on its tracks are irrelevant to a determination of whether the respondent discriminated against the applicant. According to CN, any evidence adduced through Doug Van Cauwenbergh's testimony would not have any bearing on the Tribunal's decision with respect to the remaining allegations against the respondent in this case.

8The union submits that the summons should not be quashed because it is not disputed that Mr. Van Cauwenbergh has knowledge of the issues raised in this Application. The union also submits that he was one of the people that the respondent contacted to request that CN lift the ban imposed on the applicant. According to the union, any evidence he would give on this point is central to the issue of the respondent's efforts to have CN lift the ban. Finally, the union submits that it is clear the CN has arguably relevant documents regarding the respondent's efforts to have the ban lifted since some were produced by the respondent itself.

9Having reviewed the parties' submissions, I deny CN's motion to quash the summons to Mr. Van Cauwenbergh. In my view, Mr. Van Cauwenbergh has relevant evidence to provide on the remaining issues in this Application. However, I wish to make clear that Mr. Van Cauwenbergh will only be required to give evidence that relates to the scope of this Application as it stands after the Tribunal's Interim Decision. That is, Mr. Van Cauwenbergh will only be required to give evidence that is relevant to the issues identified in paragraph 3 above.

order

10For the reasons set out above, the Tribunal denies CN's motion to quash the summons. However, Mr. Van Cauwenbergh is only required to bring with him any documents that are relevant to the issues identified in paragraph 3 above. Further, in the circumstances, it is not necessary for Mr. Van Cauwenbergh to bring any documents that already have been produced by the respondent.