HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerrilyn Huntley

Applicant

-and-

Hydro One Networks Inc.

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 25, 2013

Citation: 2013 HRTO 1807

Indexed as: Huntley v. Hydro One Networks Inc.

WRITTEN SUBMISSIONS

Kerrilyn Huntley, Applicant ) Carolyn Hart, Counsel

Hydro One Networks Inc., Respondent ) Daniel McDonald, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address a number of preliminary issues prior to the hearing of the merits of the Application.

BACKGROUND

2On April 27, 2012, the applicant, who is a female Electrician Journeyperson and works on the respondent’s construction projects as a Sub-Foreperson, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent subjected her to discrimination because of her sex and a reprisal with respect to employment. Specifically, she alleged that in March and April 2011, she participated in a job competition for the position of Electrical Foreperson-in-Training (“EFIT”), but was denied the position “because of her gender and as a reprisal for making allegations of harassment against male colleagues.”

3In the narrative of the Application, the applicant’s allegations of discrimination and reprisal are in a section in the middle entitled, “The Electrical Foreman in Training Job Competition”. The narrative also has separate sections at the beginning and end entitled, “The Applicant’s Experience Working at Hydro One” and “The Applicant’s Experience Post Job Competition”, which state the following:

1. In December 2005, the applicant was a victim of a sexual assault. In September 2006, while she was on a personal leave, she received a letter from the respondent informing her that she was being terminated due to an alleged failure to report for work. The respondent and the applicant’s Union ultimately agreed that the applicant would be reinstated to her position, but she would be debited four months of seniority.

2. (a) In November 2007, the applicant complained to the respondent that she had been subjected to inappropriate sexual comments by several male co-workers and inappropriate touching by one male co-worker while attending a first aid course. Following an internal investigation, the respondent informed the applicant that her allegations could not be substantiated. (b) Ever since the investigation, she has met with hostility from the co-workers who were involved and the friends of those co-workers.

3. Since her return to work in January 2007, the applicant’s manager has kept close tabs on her attendance, including phoning her supervisor whenever she is absent to demand an explanation for her absence.

4. The applicant has also been the subject of unusual scrutiny by the respondent’s human resources department, and has been summarily denied board and travel allowances on several occasions.

5. Since the beginning of the applicant’s employment with the respondent, she has frequently experienced harassment by some male co-workers. When she reported such harassment to her supervisors, she has been told “this is construction, get used to it” and to “pick your battles”. On occasions where she has stood up for herself, she has been reprimanded for having a bad attitude.

6. In May 2011, the applicant was assigned to work with a supervisor, who then frequently clashed with her and complained that she did not complete tasks that he had not instructed her to complete. She requested a transfer, which was resisted by the supervisor because he said that he did not want to transfer a “problem”, but the transfer was ultimately granted.

7. In March 2012, the applicant applied for the position of cost estimator, but was not granted an interview.

4On June 18, 2012, the respondent filed a Response, which denied the allegations of discrimination and reprisal. The respondent also requested that the Tribunal strike 1. to 7. above from the Application because the alleged incidents occurred outside the one-year time limit in s. 34(1) of the Code, are devoid of sufficient particulars to allow the respondent to respond to them, and/or are not linked to the applicant’s allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues.

5On July 20, 2012, the applicant filed a Reply, which stated that she is not seeking relief under the Code with respect to the incidents in 1. to 7. above; rather, she is relying on these incidents as relevant background. Specifically, she stated that these incidents demonstrate her “assertiveness with respect to human rights issues” and the respondent’s “indifference to such issues.” She also provided further details and particulars about some of the alleged incidents in 1. to 7. above.

6On March 22, 2013, the Tribunal issued a Notice of Confirmation of Hearing to the parties, which informed them that the hearing was scheduled for November 6, 7 and 8, 2013.

7On June 10, 2013, the respondent filed a Request for an Order During Proceedings (“RFOP”), which repeated its request that the Tribunal strike 1. to 7. above from the Application.

8On July 15, 2013, the applicant filed a Response to the RFOP, which stated:

The Applicant maintains that the pleadings objected to by the Responding Party constitute important background information to her complaint. The Applicant’s background pleadings support her reprisal allegations because they show that she has raised human rights issues with the Responding Party in the past. The Applicant asserts that she was branded a ‘problem’ or ‘troublemaker’ for raising human rights issues and that the troublemaker reputation factored into the employer’s decision to deny her promotion to the position of EFIT.

(…)

The Tribunal need only determine whether the background events engage section 8 because they involve complaints about conducted prohibited by the Code.

9In late September 2013, the parties delivered to each other and filed with the Tribunal a copy of the documents that they intend to rely on at the hearing, as well as a witness list and statements summarizing the expected evidence of each witness.

10On October 7, 2013, the respondent filed a further RFOP, which requested that the Tribunal order the applicant to produce documents related to the alleged incidents in 1. to 7. above.

11On October 22, 2013, the applicant filed a Response to the RFOP, which agreed to produce some of the documents, but stated that the remaining documents cannot be produced because she does not have them in her care or control, the respondent already has them in its possession, and/or they are protected by solicitor-client and litigation privilege.

12On October 7, 2013, the respondent also filed an RFOP, which requested that the Tribunal order the applicant to produce witness statements that are more detailed and set out the particular evidence that each witness will give, rather than just general topics.

13On October 22, 2013, the applicant filed a Response to the RFOP, which maintained that the statements for her witnesses are sufficiently detailed, but, on a without prejudice basis, added further details and particulars to some of the witness statements.

ANALYSIS

14The one-year statutory time limit for filing an application with the Tribunal is set out in s. 34(1) of the Code. The applicant appears to acknowledge that the incidents set out in 1. to 7. above are either outside the one-year statutory time limit or post-date the alleged incident of discrimination and reprisal. She states that she is not seeking relief under the Code with respect any of these incidents; rather, she states that she is seeking to call evidence about these incidents as relevant background information.

15The applicant is not precluded from calling evidence about alleged incidents outside the one-year statutory time limit or post-dating the alleged incident of discrimination and reprisal. However, as always, the admissibility of any evidence sought to be adduced during the hearing will depend, among other things, on its relevance to the issues to be determined; whether the respondent is prejudiced by the introduction of such evidence; and if so, whether such prejudice may be cured other than by excluding the relevant evidence. See Killeen v. Soncin Construction, 2013 HRTO 350.

16Furthermore, the Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may, among other things, define and narrow the issues in order to decide an Application, and limit the evidence or submissions on any issue. See Rule 1.7 of the Tribunal’s Rules.

17I agree with the applicant that she is entitled to call evidence about incidents outside the one-year statutory time limit or post-dating the alleged incident of discrimination and reprisal, which show that she raised human rights issues with the respondent in the past, she was branded a “problem” or “troublemaker” for raising those issues, and the troublemaker reputation factored into the respondent’s decision to deny her promotion to the position of EFIT. However, I also agree with the respondent that the applicant is not entitled to call evidence about incidents that are devoid of sufficient particulars to allow the respondent to respond to them, and/or that are not linked to her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues.

18I will now deal with the alleged incidents in 1. to 7. above. With respect to the incidents in 1., 3., 4., and 7., I am not prepared to allow the applicant to call evidence about them because she has failed to explain how they are relevant in proving her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues.

19With respect to 2.(a), there is no dispute between the parties that the applicant filed an internal human rights complaint, that the respondent assigned a third party to investigate the complaint, and that the investigation did not substantiate the complaint. Beyond these undisputed facts, I am not prepared to allow the applicant to call any further evidence about her complaint, the investigation and the results of the investigation because she has failed to explain how any further alleged details are relevant in proving her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues. I am only prepared to allow the applicant to call evidence about who was allegedly aware of her complaint as set out, for example, in paras. 3 and 14 of her Reply and paras. 8 and 10 of her witness statement.

20With respect to 2.(b) and 5., I am prepared to allow the applicant to call evidence about the alleged incidents that she has provided details and particulars about in paras. 3, 4, 5, 9, 10, and 11 of her Reply and paras. 8, 9, 11, 13, and 14 of her witness statement. In my view, the applicant has explained how these alleged incidents are relevant in proving her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues. However, I am not prepared to allow the applicant to call evidence about the alleged incidents in para. 15 of her witness statement (and para. 14 of her Application) unless she provides particulars and details in advance of the hearing, which, at a minimum, set out when these incidents occurred, who the supervisors were, and how she was reprimanded. The applicant should also be aware that I will not allow her to call evidence about any other alleged incidents that she has failed to raise with details and particulars in advance of the hearing.

21With respect to 6., there is no dispute between the parties that the applicant and her supervisor had a disagreement about her work performance, the applicant requested a transfer to another work location, and the transfer was ultimately granted. Beyond these undisputed facts, I am not prepared to allow the applicant to call any further evidence about what the disagreement was about because she has failed to explain how any further alleged details are relevant in proving her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues. I am only prepared to allow the applicant to call evidence about the supervisor’s alleged statement that he did want to transfer a “problem”, as set out in para. 22 of her witness statement (and para. 24 of her Application).

22I will now deal with the witnesses that the parties intend to call at the hearing. I am not prepared to allow the applicant to call Brian Priestap because she has failed to explain how his testimony will be relevant in proving her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues. I am also not prepared to allow the applicant to call John Galliot and Jim McDermott because she has failed to explain how their testimony will be relevant in proving her allegation that the respondent denied her the EFIT position because of her gender and as a reprisal for making allegations of harassment against male colleagues. Neither of these individuals was a member of the hiring committee. Similarly, although I will allow Rob Routledge to testify, I am not prepared to allow him to testify about his alleged comments to her in 2011 about her application for the EFIT position (the second bullet point in his witness statement). Again, he was not a member of the hiring committee.

23In view of my orders and directions above, it is not necessary, in my view, for the respondent to call Jerome McLaughlin, Arjanpal Singh, Dave Buchanan, Cathy Morgan, Sean Curtain, John Hazuda, Jody Higgins, Mike Lyne, Jason Warner Smith, Dean C. Benard, Noel Bell, and Bryan Bodkin as witnesses. Furthermore, although I will allow Michelle Morrissey-O’Ryan, Shane Apted, Heather White, Greg Chaffey, Ron Bertie, and Darrin Bradley to testify, I am not prepared to allow them to testify about matters in contravention of my orders and directions above.

24Finally, I will deal with the respondent’s request for production of documents from the applicant related to the alleged incidents in 1. to 7. above. In view of the applicant’s Response to the RFOP and my orders and directions above, unless the parties inform me otherwise, I will assume that there are no longer any outstanding documents to be produced.

ORDER

25The Tribunal makes the following orders and directions:

1. At the hearing, the applicant will not be permitted to call evidence about the alleged incidents in 1., 3., 4., and 7. above.

2. With respect to 2.(a), the applicant will not be permitted to call any evidence about her internal human rights complaint, the investigation of her complaint, and the results of the investigation, beyond the undisputed fact that she filed a complaint, the respondent assigned a third party to investigate the complaint, and the investigation did not substantiate the complaint. She will be permitted to call evidence about who was allegedly aware of her complaint.

3. With respect to 2.(b) and 5., the applicant will be permitted to call evidence about the alleged incidents, except for the alleged incidents in para. 15 of her witness statement (and para. 14 of her Application), which she will not be permitted to call evidence about, unless she provides particulars and details in advance of the hearing, which, at a minimum, set out when these incidents occurred, who the supervisors were, and how she was reprimanded.

4. With respect to 6., the applicant will not be permitted to call any evidence beyond the undisputed fact that she and her supervisor had a disagreement about her work performance, the applicant requested a transfer to another work location, and the transfer was ultimately granted, and the supervisor’s alleged statement about not wanting to transfer a “problem”.

5. The applicant will not be permitted to call Brian Priestap, John Galliot and Jim McDermott as witnesses. Rob Routledge will be permitted to testify, but not about his alleged comments to the applicant in 2011 about her application for the EFIT position

6. The respondent will not be permitted to call Jerome McLaughlin, Arjanpal Singh, Dave Buchanan, Cathy Morgan, Sean Curtain, John Hazuda, Jody Higgins, Mike Lyne, Jason Warner Smith, Dean C. Bernard, Noel Bell, and Bryan Bodkin as witnesses. Michelle Morrissey-O’Ryan, Shane Apted, Heather White, Greg Chaffey, Ron Bertie, and Darrin Bradley will be permitted to testify, but not about matters in contravention of my orders and directions above.