HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Philton Moore
Applicant
-and-
Ferro & Company, Lou Ferro and Ellen Helden
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Moore v. Ferro & Company
WRITTEN SUBMISSIONS
Philton Moore, Applicant
Self-represented
Ferro & Company, Lou Ferro and Ellen Helden, Respondents
Stacey Ball, Counsel
1This is an Application dated September 13, 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 race, colour, ancestry, place of origin, citizenship, ethnic origin and age and also alleging reprisal.
2In brief, the applicant alleges that he experienced discrimination and reprisal in the course of applying, interviewing and being considered for position(s) at the respondent law firm. The applicant self-identifies as a Black man of Afro-Caribbean descent and a man of colour, who at the relevant time was 46 years of age. The applicant also is a foreign-trained lawyer, having been called to the Bar of England and Wales in 1998, and then coming to Canada and re-qualifying as a lawyer here, being called to the Ontario Bar in 2010.
3This matter currently is scheduled to proceed to hearing in Hamilton on January 17, 2014. Due to a personal matter, I will not be able to conduct the hearing on the currently scheduled second day, namely January 20, 2014. Accordingly, by December 5, 2013, the parties are directed to provide all of their availability in February and March 2014 to schedule three additional hearing days.
4The purpose of this Interim Decision is to address the multitude of Requests for Order that have been filed by the parties. While the parties have requested that their Requests be heard by conference call, this Tribunal has discretion to determine the most appropriate means of dealing with interim issues. In my view, given the very fulsome written submissions filed by the parties and the nature of the issues raised, it is not necessary to convene a conference call to hear oral submissions in addition to the written submissions already filed. Accordingly, I will deal with these Requests in writing.
Respondents’ Request for Summary Hearing dated October 8, 2013
5As stated above, the respondents filed a Request for Summary Hearing dated October 8, 2013, which was denied by letter dated November 7, 2013. Notwithstanding, an issue has arisen between the parties as to whether the Tribunal’s disposition of the Request for Summary Hearing also has denied the respondents’ request, made as part of their Request for Summary Hearing, for an order banning the applicant from bringing any future claims against the respondents without leave of the Tribunal. This will be referred to as a request for a “vexatious litigant” order.
6In my view, respondents’ counsel is correct that the Tribunal’s November 7, 2013 letter only addressed the request for a summary hearing and not the request for a “vexatious litigant” order. That said, I see no basis in the material before me to support the making of such an order at this time, and this request is denied.
Applicant’s Request for Order dated October 22, 2013 (as amended)
7The applicant filed a Request for Order dated October 22, 2013 (subsequently amended on November 4, 2013) seeking production of documents and certain other relief as set out below. At this time, the respondents had filed a Request for Summary Hearing on October 8, 2013. Shortly after the filing of the applicant Request for Order, on October 28, 2013, the respondents requested that the applicant’s Request be stayed pending determination of their Request for Summary Hearing.
8By letter dated November 7, 2013, the Tribunal notified the parties that the Request for Summary Hearing had been denied. The respondents were given until November 21, 2013 to file their Response to the applicant’s Request for Order. Thereafter, the applicant filed written submissions in reply on November 27, 2013.
Request for production
9I will deal first with the applicant’s request for production of documents, in the order in which the applicant has itemized his requests.
10The applicant first requests the CVs and application cover letter for all candidates appointed to the role for which he was invited to interview on August 11, 2011 (Item #1). The respondents have agreed to provide name-redacted versions of CVs and cover letters, unless the Tribunal orders otherwise. The names of the candidates hired already have been disclosed by the respondents in response to item #28 of the applicant’s disclosure request. Accordingly, it makes little sense to me for their names to be redacted from their CVs and cover letters. As a result, I order the respondents to disclose to the applicant unredacted copies of these documents.
11The applicant next requests CVs and application cover letters of all candidates appointed to the roles applied for or for which the applicant was interviewed in February 2011 (Item #2). The respondents have agreed to provide name-redacted versions of CVs and cover letters if available, subject to an order from the Tribunal. In my view, these documents are clearly arguably relevant to the matters at issue in this proceeding. In addition, as these documents pertain to candidates actually hired by the respondent law firm, I do not see any valid reason why their names need be redacted. As a result, I order the respondents to disclose to the applicant unredacted copies of these documents.
12The applicant next requests CVs and application cover letters of all candidates appointed to the roles applied for or for which the applicant was interviewed on June 15, 2011 (Item #3). The respondents have agreed to provide redacted versions of CVs and cover letters if available with names redacted subject to an order from the Tribunal. Once again these documents clearly are arguably relevant and I see no reason for names to be redacted. As a result, I order the respondents to disclose to the applicant unredacted copies of these documents.
13The applicant next requests CVs and application cover letters of a specific associate at the respondent law firm who is identified by name (Item #4). The respondents have agreed to provide a copy of this individual’s CV and have indicated that this person’s cover letter is not available. In my view, this responds to the applicant’s request.
14The applicant next requests CVs and application cover letters of a specific former employee of the respondent law firm and for any foreign-trained or qualified lawyers, legal assistants or legal associates in the respondent firm’s employ (Item #5). The respondents have agreed to provide copies of CVs and cover letters, if available, for any foreign-trained or qualified lawyers. In my view, this responds sufficiently to the applicant’s request. I am not clear what the applicant means by “legal assistants”, but if he is referring to employees who are not lawyers, then in my view such documents are not arguably relevant to the matters at issue. The respondents have not responded to the applicant’s request regarding the specific former employee. If this person is a lawyer, then the respondents shall also disclose this person’s CV and cover letter, if available.
15The applicant next requests job descriptions and person specifications for the roles for which he was interviewed and for the role for which he was invited to an interview on August 11, 2011 (Items #6 and #7). While these documents would be arguably relevant, the respondents have indicated that they do not exist. As a result, I make no order in this regard.
16The applicant next requests copies of all interview notes pertaining to the roles for which he was interviewed or invited for an interview (Item #8). The respondents have stated that they will provide minutes of the February 16, 2011 “BSU” interview. Apart from that, the respondents state that no other documents exist. To be clear, as I read the applicant’s request, he is not just referring to interviews that he attended or participated in, but to interview notes for all candidates considered for the roles for which he was interviewed or invited for an interview. In my view, if any such documents exist, they would be arguably relevant to the matters at issue. Accordingly, I order that any such documents be produced, unredacted, or that the respondents clarify that no such documents exist for any candidates interviewed for these positions, apart from the February 16, 2011 notes.
17The applicant next requests copies of all interview notes pertaining to the job interviews of all other candidates for the role for which he was invited to an interview on August 11, 2011 (Item #9). The respondents have agreed to provide copies of minutes from the following: an interview with an identified person on July 20, 2011, who was hired as a lawyer; an interview with an identified person on July 22, 2011 who was not hired; and the group interview minutes from February 16, 2011. The respondents have not explicitly stated that no other documents responsive to this request exist. In my view, if any such documents exist, they would be arguably relevant to the matters at issue. Accordingly, I order that any such documents be produced, unredacted, or that the respondents clarify that no such documents exist, apart from the notes identified in their Response.
18The applicant next requests copies of all documents and notes pertaining to: the criteria used to determine “fit” for the roles for which he was interviewed or invited to interview (Items #10 and #11). The respondents have indicated that they have no such documents. Accordingly, no order is appropriate in respect of these items.
19The applicant next requests documents evidencing the ages of the respondent’s employees (Item #12). The respondents state that they have no such documents. Apart from the ability to order production of documents, this Tribunal also has the power to order production of information: see Rule 1.7(p). In my view, it is arguably relevant to know the ages at least of the candidates who were hired into the positions for which the applicant interviewed in February and June 2011 and was invited to interview in August 2011. Accordingly, I order the respondents to provide the names and ages of all such persons.
20The applicant next requests documents and CVs concerning the “senior lawyer” that is alleged to have been referenced by Ms. Helden at his June 15, 2011 interview (Item #13). The respondents state that they have no such documents. Accordingly, no order is appropriate in respect of this item.
21The applicant next requests documents supporting the non-discriminatory bona fides as to why the positions were reserved for new calls only (Item #14). I am not clear as to what documents possibly could be responsive to such a request. In any event, the respondents state that they have no such documents. Accordingly, no order is appropriate in respect of this item.
22The applicant next requests documents concerning the role of the respondent law firm’s Professional Services Liaison (Item #15). The respondents state that they have no such documents. Accordingly, no order is appropriate in respect of this item.
23The applicant next requests documents concerning the processing or handling of personal injury claims, including the “nine stages of a file” as referenced in the Application, and on the two problem-solving methods referred to by Ms. Helden at the group interview held in February 2011 (Items #16 and #17). In response, the respondents state that these are confidential documents. However, they are prepared to make these documents available to the applicant for review at the offices of respondents’ counsel, subject to the applicant’s undertaking not to disclose the contents of these documents to third parties and not to use them in his own practice or for any other purpose. While I appreciate the respondents’ offer, I fail to see the arguable relevance of these documents to a matter at issue in this proceeding. I appreciate that the applicant says the respondents told him at different points in time that they were looking for someone with personal injury law experience. At the hearing, he is free to challenge that assertion with reference to the candidates who were hired. But the “nine stages of a file” document, as I understand it, is an internal document created by the respondent law firm, and there is no allegation that candidates were expected to have familiarity or experience with this specific document. Further, while Ms. Helden may have referred to different problem-solving methods at the February 2011 interview, I fail to see how internal documents prepared by the respondent law firm in relation to any such methods are arguably relevant to this proceeding. Accordingly, I decline to make any order in respect of these requests.
24The applicant next requests documents, such as CVs, showing whether the successful candidates had legal experience in a “traditional law firm” (Item #18). The respondents have agreed to provide redacted résumés of candidates hired in proximity to the applicant’s interviews, if available. In my view, this request is duplicative of requests already made and responded to, and I will make no further order arising from this specific request.
25The applicant next requests e-mails or letters and other documentation showing the dates all other candidates were invited for interview as well as the dates on which those interviews took place (Item #19). The respondents have agreed to provide available (with names redacted) documents for non-hired candidates in proximity to the applicant’s interviews and (non-redacted) copies of available documents for hired candidates. In addition, if documents responsive to this request are either not available or only partially available, I order the respondents to provide a list of all candidates interviewed in proximity to the applicant’s interviews in February and June 2011 or invitation to interview in August 2011, with the dates on which each candidate was invited for an interview and when the interview took place. The names of hired candidates are to be shown on this list and the non-hired candidates are to be identified by distinct letter or number that should correspond to the letter or number shown in place of any such candidates’ names on any redacted documents.
26The applicant next requests copies of all memo / briefing on the SABS medical-rehab line submitted by all candidates interviewed for the role or who were appointed to the role (Item #20). The respondents state that the applicant’s SABS memo already has been provided. The respondents further agree to use their best efforts to provide other writing assignments from other successful candidates, if available. In my view, the documents sought in this request that are arguably relevant relate to candidates hired for the positions for which the applicant was interviewed or invited to interview, and do not extend to those candidates who were not hired. Accordingly, the respondents have sufficiently responded to this request.
27The applicant next requests a list of the names of all those employees / agents of the respondents who attended each of the interviews of the other job applicants (Item #21). The respondents state that the only “list” found is in the minutes agreed to be provided in response to Item #9. While I appreciate that this may be the only document that is responsive to this request, the list that I have order compiled in response to Item #19 shall also show who conducted the interviews.
28The applicant next requests a list of the names of all those employees / agents of the respondents who attended the interview for the role for which the applicant was invited to interview on August 11, 2011 (Item #22). In my view, this request is duplicative and already has been addressed above.
29The applicant next requests job descriptions and person specifications for the role that Ms. Helden identified as a “fit” for the applicant’s skill sets and experience as referenced in the Application (Item #23). The respondents state that they have no such documents. Accordingly, no order is appropriate in respect of this item.
30The applicant next requests copies of all information / documents concerning the respondents’ assessment and/or grading of no-fault accident benefits memorandum from other candidates (Item #24). The respondents state that they have no such documents. If the respondents have marked-up copies of the documents ordered produced pursuant to Item #20 above (i.e. marked-up by any of the respondent law firm’s employees), including any marked-up version of the applicant’s memo, then any such documents would be arguably relevant and are ordered produced.
31The applicant next requests “documentary proof” of the following: the assertion that Ms. Helden was a former operating nurse, the year of her qualification and the last date when she worked as an operating nurse (Item #25); and the assertion that Ms. Helden had surgical nursing experience of a sufficient number of years and in a capacity that would enable her to determine the applicant’s practical nursing experience was inadequate for the envisioned role (Item #26). The respondents state that they have no such documents. To the extent that this is relevant, these questions can be asked of Ms. Helden at the hearing. Accordingly, no order is appropriate in respect of this item.
32The applicant next requests documentary proof supporting the assertion that he was in the UK when he was invited for the interview to occur on August 11, 2011 (Item #27). The respondents state that the applicant already has the e-mail he sent on August 14, 2011 confirming he was out of the country. No order is appropriate or necessary in respect of this item.
33The applicant next requests documentary proof supporting the assertion that the position for which he was invited to be interviewed on August 11, 2011 was filled by another candidate (Item #28). In response, the respondents have identified the names of the specific individuals hired on July 25, August 15 and September 6, 2011. In my view, that sufficiently responds to the applicant’s request.
34The applicant next requests documentary proof that the successful candidates hired for the position for which he was invited to be interviewed on August 11, 2011 had nursing experience and/or qualifications (Items #29 and #30) or were a “fit” for the role (Item #31). The respondents state that they have no such documents. As a result of orders I already have made, the applicant will receive the CVs and cover letters for these individuals, which may reveal whether they have any nursing qualifications or experience. Further, he can ask questions at the hearing about how these candidates were determined to be a “fit” in contrast to him. No further order is appropriate or necessary in respect of these items.
35The applicant next requests copies of documents he says that he left in a folder with an employee of the respondent law firm, which contained samples of his legal work in the UK (Item #32). The respondents state that they have no such documents, apart from the SABS memo that the applicant already has produced. Accordingly, no order is appropriate in respect of this item.
36The applicant next requests documentary proof of the racial, ethnic, nationality and ages of persons in the respondent’s workplace past and present (Item #33). The respondents state that they do not create such records and do not have such records. Accordingly, no order is appropriate in respect of this item.
37The applicant next requests documents concerning and relating to the “group orientation” and “initial in-person interview” he attended on January 20, 2011 (Item #34). The respondents state that they have no such records. Accordingly, no order is appropriate in respect of this item.
38The applicant next requests documentary proof in support of the respondents’ assertion that the respondent law firm has a different organizational structure and model compared to most law firms (Item #35). The respondents have agreed to provide a copy of internal “organizational structure” and “team organizational” charts, but proposes to provide copies with names redacted unless the Tribunal orders otherwise. I do not understand the necessity for redacting names from such documents, which I presume merely identify who is in the various roles. Accordingly, I order that unredacted copies of these charts be provided. In my view, this sufficiently responds to the applicant’s request.
39The applicant next requests documents evidencing the assertion that the organizational structure and model of the respondent law firm and its “group process orientated” model made the firm “better suited to some lawyers as opposed to others” (Item #36) and documents evidencing the legal qualifications and experience of all persons employed as lawyers with the respondent law firm which demonstrate those lawyers had the “fit” suited to the firm’s model (Item #37). The respondents state that they have no such documents. Accordingly, no order is appropriate in respect of this item.
40The applicant next requests documents concerning or evidencing the “self-directed learning process” referenced in the Response (Item #38). In response, the respondents indicate that they have a copy of a book titled Self Directed Learning: A Guide for Learners and Teachers by Malcom S. Knowles which is available at the offices of respondents’ counsel for the applicant to attend and examine. In my view, this sufficiently responds to the applicant’s request.
41The applicant next requests documents concerning the second interview he attended in February 2011 showing the criteria used to assess him at that interview (Item #39). The respondents state that they have no criteria documents. Accordingly, no order is appropriate in respect of this item.
42The applicant next requests documents concerning the reasons he was deemed not to be suitable or qualified for the role in connection with his interview in February 2011 (Item #40). The respondents state that the February 16, 2011 minutes they already have agreed to provide in response to Item #8 are responsive to this request. In my view, this sufficiently responds to the applicant’s request.
43The applicant next requests documents concerning or evidencing that the person appointed to the role for which the applicant was interviewed in February 2011 had articling experience in insurance law or personal injury law (Item #41). The respondents state that they already have agreed to provide CVs and cover letters in response to Item #2, which are responsive to this request. In my view, this sufficiently responds to the applicant’s request.
44The applicant next requests copies of all the job advertisements to which he responded, including those to which he was invited to, without applying, relevant to this proceeding (Item #42). In response, the respondents state that the applicant already has copies of the job advertisements, but they will provide copies in their possession if there are any. In my view, this sufficiently responds to the applicant’s request.
45The applicant next requests documents evidencing the wages and/or salary and benefits and perks associated with all of the jobs or positions for which he applied, was interviewed or was invited to be interviewed (Item #43). In response, the respondents state that there are no such documents, but state that the base salary was $75,000 annually and there was an ancillary benefit of $5,000 toward professional fees. In my view, this sufficiently responds to the applicant’s request.
46The applicant next requests copies of all documents and information that the respondents intend to use or rely on at the hearing (Item #44). The respondents state that they will provide all documents that they intend to rely upon at the hearing, including those the Tribunal orders the applicant to produce which have not already been produced. This is an unnecessary request, as the Rules already set out a requirement for disclosure and filing of documents to be relied upon at the hearing and a list of witness and witness statements (see Rules 16 and 17), which are to be filed 45 days in advance of the first hearing day. As the production orders I am making in this Interim Decision will not be required to be complied with until after December 3, 2013, which is the current deadline for compliance with pre-hearing obligations under Rules 16 and 17, I will make an order extending that deadline so that the parties’ filings can include documents ordered to be produced.
47The applicant finally requests a copy of the e-mail sent to all candidates cancelling the interview scheduled for February 2, 2011 (Item #45). The respondents state that they do not believe that this is relevant, but will provide those documents that are in their possession, with names redacted unless otherwise ordered. I do not see the arguable relevance of this request to the matters at issue in this proceeding, and make no order in this regard.
Other requests
48The applicant also requests an order for an inspector to gather evidence from the respondents relevant to the hearing, pursuant to s. 5.4(1)(e) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This provision empowers the Tribunal to make orders for “any other form of disclosure” and does not specifically empower the appointment of an inspector. Whether or not I have the power to make such an order, upon which I express no opinion, I do not see the kind of exceptional or extraordinary reasons that would justify making such an order in this case. Accordingly, this request is denied.
49The applicant next requests an order that the respondents’ request for a vexatious litigant order be dismissed. At various times in the course of this proceeding, the applicant has filed Requests for Order simply seeking that the respondents’ Requests for Order be dismissed. This is duplicative and unnecessary. It is sufficient for a party who opposes a Request for Order simply to file a Response (Form 11) stating their reasons for opposing the request and asking that it be dismissed. I already have denied the respondents’ request for a vexatious litigant order above, and will disregard any other Requests for Order filed by the applicant that simply seek dismissal of the respondents’ Requests.
50The applicant next requests an order that the respondents be barred from raising, adducing or relying on allegations or evidence not raised, alluded to or pleaded in their Response. Pursuant to Rule 5.7, I have the power to refuse to allow a party to present evidence or make submissions about a fact or issue that was not raised in the Application, Response, Reply or in the materials filed under Rule 16 and 17, unless I am satisfied that there would be no substantial prejudice and no undue delay to the proceedings. As the parties have not yet complied with their pre-hearing obligations under Rules 16 and 17, the invoking of Rule 5.7 is premature. If there is some specific fact or issue that the respondents seek to raise at the hearing that was not raised in their Response or in the materials filed under Rules 16 and 17, then the applicant may raise any such matter at the relevant time.
51The applicant finally requests that the Tribunal compel the personal respondent Lou Ferro to refrain from using inappropriate, abusive or intimidating language in his interactions with the applicant. In response, the respondents state that such an order is unnecessary and that Mr. Ferro will not contact the applicant directly unless the applicant contacts Mr. Ferro directly. Having read some of the correspondence between the parties and counsel, I sometimes felt as if I were observing the kind of antics more reminiscent of those that precede a professional wrestling bout, than what I would expect from these individuals, all of whom are lawyers. It is my expectation that going forward, all parties and counsel will conduct themselves with courtesy and civility in their interactions with each other, in accordance with Rule 1.12.1 and their obligations under the Rules of Professional Conduct. Given that Mr. Ferro is represented in this proceeding by counsel, I do not understand the need either for the applicant to correspond with Mr. Ferro directly or vice versa. Having said that, I do not regard the order sought by the applicant as being necessary or appropriate, and will rely on all parties and counsel to govern themselves appropriately.
The Respondents’ Request for Order by letter dated October 28, 2013
52By letter dated October 28, 2013, the respondents made certain requests ancillary to their Request for Summary Hearing dated October 8, 2013. The first two requests, which relate to the applicant’s production request, are now moot.
53The respondents next request an order that their Form 26 Summary Hearing Application and Schedule “A” of October 8, 2013 and Supplementary Schedule “A” of October 11, 2013 be deemed part of the respondents’ Form 2 Response. I decline to make any such order, as this material contains a significant amount of legal argument relevant to the summary hearing request that would not appropriately form part of a Response and as doing so would make the pleadings disconnected and unwieldy. If the respondents believe that it is necessary for them to amend their Response, the appropriate course of action is for them to make a Request for Order to amend that attaches a proposed amended Response with proposed amendments underlined, together with their submissions as to why the amendment should be granted.
54From the respondents’ Response to Request for Order dated November 20, 2013, I understand that the respondents intend to seek to amend their Response. If so, the respondents should make their Request soon, as any amendment requires the Tribunal’s leave in accordance with its case law, some of which has been cited by the applicant. If the amendments sought by the respondents already form part of their submissions in support of their request for summary hearing, then this can be referenced in their submissions in support of granting the amendments.
55Finally, the respondents seek an order requiring the applicant to amend and re-submit his Form 1 Application narrowed to the issues he is allowed to proceed on and to succinctly and concisely state the facts he will be relying upon. I appreciate that the applicant has filed a very lengthy Application. I urge upon the applicant the wisdom that I learned as counsel, which is that effective advocacy more often is achieved by brevity and concision. That said, in my view the Application does set out the bases upon which the applicant is alleging that his rights under the Code were infringed in a manner that is capable of being understood and responded to. Accordingly, the respondents’ request that the applicant amend and re-submit his Application is denied.
Respondents’ Request for Order dated November 12, 2013
56The respondents filed a Request for Order dated November 12, 2013 seeking production of documents from the applicant.
57The respondents’ first request is for documents relevant to ascertain whether the applicant has made reasonable attempts to mitigate any losses he alleges to have suffered as a result of not being hired by the respondents in 2011, namely: mitigation documentation from 2011 to the present; records of employment from 2009 to the present; job searches from 2011 to the present including any correspondence to and from prospective employers; list of employers from 2011 to the present; tax returns, T-4s and/or T-1s, personal notices of assessment from 2009 to the present to confirm income earned by the applicant; any documentation relating to income earned by the applicant but not reported on his tax returns from 2009 to the present; and all financial statements, records, billing journals, bank statements, expense records, tax returns and notices of assessment for any business or practice the applicant has been involved in since 2011 to the present.
58In response, the applicant states that he has no records of employment as he has not been employed in Canada during the relevant time from 2011 to the present. He states that he already has produced all job search documents to the respondents. He states that he has had no employers from 2011 to the present. He states that he has no tax records as he has had no taxable income since 2005. He states that he has no documentation relating to income earned by him but not reported, as he has had none.
59With regard to the requests relating to his law practice, the applicant quite properly objects to disclosure of such things as billing journals, bank statements, and expense records. In my view, requiring disclosure of such records would be unnecessarily intrusive. I also take from the applicant’s submissions that he does not have any tax returns or notices of assessment relating to his law practice. If he does have any such records, then they properly are producible and I order them to be produced. I do, however, find it surprising that the applicant does not even have unaudited financial statements for the period from 2011 to the present. Information as to the applicant’s gross income and expenses relating to his law practice is obviously relevant to the assessment of the compensation he has sought.
60As noted above, I have the power pursuant to Rule 1.7(p) to “require a party . . . to produce any document, information or thing”. If the applicant does have financial statements relating to his law practice for the period from 2011 to the present, then I order these to be produced. If for some reason, he does not have any financial statements, then I order him to produce a financial statement for his law practice showing his gross income, expenses by category and net income (known as an income statement) and also a balance sheet setting out his assets and liabilities for the period from 2011 to the present.
61The respondents next request documents relevant to the applicant’s claims for special damages and/or mental anguish, namely: the names of his family doctor and any other treating physicians from 2009 to the present; all medical notes, records, and reports for the applicant from his family doctor or any other medical specialist from 2009 to the present, including decoded OHIP summaries and any other related documents; a list of all medications the applicant has taken from 2009 to the present; and any psychiatric reports prepared in relation to the applicant.
62In response, the applicant states that he is not relying upon any medical documentation in support of his claim for compensation for injury to dignity, feelings and self-respect. Accordingly, the respondents’ request for medical records is not relevant to a matter in issue and is therefore denied.
63The respondents next request documents that they say are relevant to their request that the applicant be declared a vexatious litigant, namely: any interim and/or final decisions in any other discrimination complaints the applicant been involved in any and all other jurisdictions; any terms of settlement in any other discrimination complaints the applicant has been involved in any and all other jurisdictions; and any pleadings and submissions by the applicant in any other discrimination complaints he has been involved in any and all other jurisdictions.
64As stated above, the respondents’ existing request for a vexatious litigant order has been denied. Depending upon the outcome of this proceeding, the respondents may (or may not) choose to seek such an order. But the material sought is not relevant to a matter at issue on the merits of this proceeding, which is all that the Tribunal is addressing at this time. The sole exception would be any decision by a court or tribunal which has made an adverse finding regarding the applicant’s credibility, which properly can be taken into account in assessing credibility in this proceeding. If any such decision exists, the applicant is ordered to disclose it to the respondents.
65The respondents next seek an order requiring the applicant to produce all of his academic law transcripts from Greenwich University in the UK or any other post-secondary institutions. It is submitted that this information is relevant to ascertaining if the applicant would have been hired by the respondents. In my view, there is no proper basis for this request. There is no indication in the material filed to date that the respondents ever made any such request of the applicant at the relevant time, or that they made a similar request of the candidates they hired. Accordingly, this request is denied.
Applicant’s Request for Order dated November 13, 2013
66The applicant filed a further Request for Order dated November 13, 2013 seeking dismissal of the respondents’ request for a vexatious litigant order and an order barring the respondents from filing any further Requests for Order and from making supplementary submissions. The former already has been addressed above, and the latter request is entirely unwarranted and inappropriate.
ORDER
67For the reasons stated above, I hereby make the following order:
a. The hearing day currently scheduled for January 20, 2014 is cancelled. The hearing will commence as scheduled on January 17, 2014. By December 5, 2013, the parties shall provide to each other and the Tribunal all of their availability for three additional hearing days in February and March 2014;
b. By December 12, 2013, the respondents shall disclose to the applicant the following documents and/or information:
i. unredacted CVs and cover letters for all candidates appointed to the role for which the applicant was invited to interview on August 11, 2011;
ii. unredacted CVs and cover letters for all candidates appointed to the roles applied for or for which the applicant was interviewed in February 2011;
iii. unredacted CVs and application cover letters of all candidates appointed to the roles applied for or for which the applicant was interviewed on June 15, 2011;
iv. unredacted CV of the specific associate at the respondent law firm who is identified by name in Item #4 of the applicant’s Request for Order dated October 22, 2013;
v. unredacted CVs and cover letters of a specific former employee of the respondent law firm as identified by name in Item #5 of the applicant’s Request for Order dated October 22, 2013, if this person was foreign trained or qualified, and for all foreign trained or qualified lawyers in the respondent firm’s employ;
vi. unredacted copies of all interview notes for all candidates considered for the roles for which the applicant was interviewed or invited for an interview, or clarification by the respondents that no such documents exist for any candidates interviewed for these positions, apart from the February 16, 2011 notes;
vii. unredacted copies of all interview notes pertaining to the job interviews of all other candidates for the role for which the applicant was invited to an interview on August 11, 2011, including but not limited to the minutes from the following: an interview with an identified person on July 20, 2011, who was hired as a lawyer; an interview with an identified person on July 22, 2011 who was not hired; and the group interview minutes from February 16, 2011. If nothing further exists, the respondents shall confirm that no such documents exist, apart from the aforementioned minutes;
viii. a list setting out the names and ages of the candidates who were hired into the positions for which the applicant interviewed in February and June 2011 and was invited to interview in August 2011;
ix. e-mails or letters and other documentation showing the dates all other candidates were invited for interview as well as the dates on which those interviews took place, with names of non-hired candidates redacted;
x. a list of all candidates interviewed in proximity to the applicant’s interviews in February and June 2011 or invited to interview in August 2011, with the dates on which each candidate was invited for an interview and when the interview took place, and setting out who conducted the interviews. The names of hired candidates are to be shown on this list and the non-hired candidates are to be identified by distinct letter or number that should correspond to the letter or number shown in place of any such candidates’ names on any redacted documents;
xi. any writing assignments received from successful candidates, included any marked-up copies of these assignments, and any marked-up copy of the applicant’s SABS memo;
xii. unredacted copies of the respondent law firm’s internal “organizational structure” and “team organizational” charts; and
xiii. copies of all job advertisements in the respondents’ possession relating to positions for which the applicant was interviewed or invited to an interview.
c. By December 12, 2013, the applicant shall disclose to the respondents the following documents and/or information:
i. any tax returns or notices of assessment relating to his law practice for the period from 2011 to the present;
ii. any financial statements relating to his law practice for the period from 2011 to the present. If the applicant does not have any financial statements, then he shall produce a financial statement for his law practice showing his gross income, expenses by category and net income (known as an income statement) and also a balance sheet setting out his assets and liabilities for the period from 2011 to the present; and
iii. any decision by a court or tribunal which has made an adverse finding regarding his credibility.
d. By December 19, 2013, the parties shall comply with their pre-hearing obligations pursuant to Rules 16 and 17.
Dated at Toronto, this 28th day of November, 2013.
“Signed by”
Mark Hart
Vice-chair