HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fawad Ahmed
Applicant
-and-
The Manufacturers Life Insurance Company
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Ahmed v. The Manufacturers Life Insurance Company
WRITTEN SUBMISSIONS
Fawad Ahmed, Applicant
Self-represented
The Manufacturers Life Insurance Company, Respondent
Karl Scholz, Counsel
1This is an Application 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. This matter is scheduled for hearing in Toronto on February 2 and 3, 2014.
2This Interim Decision is for the purpose of dealing with a number of procedural issues and various Requests for orders.
3On October 3, 2013, I convened a telephone conference call between the parties to address a number of preliminary and production issues. I directed that the parties were to exchange all arguably relevant documents by October 24, 2013. I also directed the parties to deliver there witness statements and the documents that they intend to rely on by December 10, 2013.
4Subsequent to this case management conference the following occurred:
a. On November 24, 2013, the applicant sent an email to the Tribunal in which he discloses his proposed witness list, which contains 12 witnesses excluding himself. The applicant also states that he does not have “resources to pay for their expenses” and that he would like the Tribunal to make arrangements for these witnesses to testify via telephone.
b. On November 24, 2013, the applicant also filed a Request for an Order During Proceeding (the “RFOP”) seeking the production of numerous records. The respondent filed a Form 11 response to the RFOP and took the position that all arguably relevant documents had been delivered to the applicant and that the applicant was refusing to produce relevant documents with respect to his mitigation and subsequent employment, and that he had only produced one document with the name of his current employer redacted;
c. On December 10, 2013, the respondent submitted its witness statements, and included a statement from the applicant’s current employer. The respondent explains that because the applicant has refused to provide information with respect to his mitigation and subsequent employment, that it has to call the applicant’s current employer as a witness to obtain this information;
d. On December 10, 2013, the applicant sent a series of emails in which he request that the Tribunal increase his case against the respondent to include a claim of 2 million dollars for permanently damaging his employment and reputation. The applicant also states that he will be sending out a brief by the end of the day which would include records of his pay, and date of hiring. Later on December 10, 2013, the applicant filed with the Tribunal a document entitled “Case History and Submissions”, which does not appear to include any documents from his current employer.
e. On December 10, 2013, the applicant also filed a Form 16, Request for Interim Remedy, (the “RFIR”) in which the applicant seeks the following:
i. The removal of counsel and the initiation of disciplinary proceedings against counsel; and
ii. That the respondent be barred from having any contact with his current employer and its managers.
The RFOP
5Having considered the submissions of the parties, I decline to order the respondent to disclose any further documents to the applicant at this time. The applicant has provided no support for his belief that the respondent has failed to provide arguably relevant documents which exist.
The Applicant’s Witness Statements
6The witness statements provided by the applicant do not comply with the Tribunal’s Rules. The applicant must provide full particulars of the proposed evidence of the witnesses, in accordance with the Tribunal’s decision in C.D. v. Wal-Mart Canada, 2010 HRTO 426, which states at para. 7:
The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.
7Further, some of the applicant’s proposed witnesses do not appear to have any information with respect to the Application. The Tribunal’s jurisdiction is limited to address allegations of Code-related harassment and discrimination and the applicant should confine his proposed evidence to Code-related issues.
8Further, it is the applicant’s responsibility to ensure that his witnesses attend the hearing. If the witnesses are unwilling to attend the hearing, then the applicant must serve them with a summons, with the appropriate conduct money to secure their attendance. If witnesses are unable to attend in person for exceptional reasons and they are willing to participate by telephone, then it is the applicant’s responsibility to make a request to the Tribunal to permit them to testify by telephone. However, it remains the applicant’s responsibility to make arrangements with the witnesses so that the Tribunal can reach them during the hearing.
9The applicant’s request that all of his witnesses testify by telephone is denied. Based on the applicant’s submissions it does not appear that his witnesses are cooperating with him to make such arrangements. Further, I am not satisfied that these are exceptional circumstances which would relieve from the general rule that witnesses be required to testify in person.
The applicant’s outstanding production issues
10The respondent has attached some of its communications with the applicant and it appears that the applicant is unwilling to disclose his arguably relevant documents.
11During the October 3, 2013, conference call I discussed with the applicant his obligation to disclose to the respondent his arguably relevant documents. The applicant stated that he had been looking for alternate employment for a number of months prior to his resignation. The applicant also claims that he is earning less money with his current employer and he is seeking that the Tribunal order damages for this wage loss. I have some concerns that the applicant has not disclosed mitigation documentation to the respondents. The applicant is required to disclose these documents to the respondent and he will be provided a final opportunity to do so. There can be serious consequences if the applicant fails to comply with this order, including dismissing the Application as an abuse of process and/or as abandoned.
The RFIR
12The respondent has not yet filed a response to the RFIR and it is not necessary for it to do so because I decline to order any of the remedies sought by the applicant in the RFIR for the reasons that follow.
13First, there is no basis to remove Mr. Scholz as counsel. The removal of counsel is a serious matter and will only occur in the most exceptional of circumstances. The applicant accuses counsel of making “racist and religious based comments” during the October 3, 2013 telephone conference because Mr. Scholz “alluded that the applicant has an agenda against women managers”. Having been present at the conference call, there is simply no basis for the applicant’s allegation that Mr. Scholz made racist and religious based comments. I would not have tolerated such comments during the conference call. At issue in this matter are, amongst other things, the applicant’s interactions with coworkers, and the Tribunal anticipates that it may have to hear evidence with respect to this issue. There is no basis to remove the respondent’s counsel because he is offended by a position taken during the course of litigation.
14Second, the applicant seeks an order precluding the respondent from contacting his current employer. Having considered the matter it appears that the applicant’s employer may have relevant information with respect to this matter and may be called upon to testify at the hearing. However, it may be that after the applicant has disclosed his arguably relevant documents that the respondent may no longer need to call the applicant’s current employer. Further, as a case management issue, given the numerous witnesses relied upon by both parties, I find that there will not be sufficient time for the respondent to call the applicant’s current employer on February 2 and 3, 2014. Therefore, I direct the respondent not to summons this witness at this time. If the respondent believes that it needs to contact the applicant’s current employer in advance of the hearing then I direct it to make submissions to the Tribunal prior to doing so.
Orders
15The Tribunal orders as follows:
a. The applicant’s RFOP is denied;
b. The applicant’s RFIR is denied;
c. Within seven days of the date of this Interim Decision, the applicant must deliver to the respondent unredacted copies of the following documents, and confirm with the Tribunal that he has disclosed the following documents:
i. Copies of any correspondence with the respondent and/or its employees in which he complains of discrimination and/or harassment;
ii. Copies of his Manulife performance audits for 2011 and 2012;
iii. Any employment documents with respect to the applicant’s search for employment commencing in December 2011, including any emails, cover letters and résumés sent to any prospective or current employers and offer letters;
iv. Any documents with respect to his hiring with his current employer, including any negotiations, offers of employment and/or employment contracts, and any documents with respect to the applicant’s earnings including bonuses;
v. Copies of any and all T-4s for 2012 and the applicant’s tax return for 2012.
d. Within seven days of this Interim Decision the applicant must deliver and file revised witness statements that comply with the directions in this Interim Decision.
16In the event that the applicant does not comply with the Orders in this Interim Decision the Application can be dismissed as abandoned and/or as an abuse of process.
Dated at Toronto, this 13th day of December, 2013.
“Signed by”
Geneviève Debané
Vice-chair