Moore v. Ferro & Company, 2013 HRTO 2106

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 Date: December 20, 2013 Citation: 2013 HRTO 2106 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.

2The hearing in this matter is scheduled to commence in Hamilton on January 17, 2014, and to continue on March 24 to 26, 2014.

3The purpose of this Interim Decision is to address the respondents’ Request for Order dated December 1, 2013 seeking to amend their Response. The applicant filed his Response to Request for Order and written submissions on December 16, 2013. As the parties were advised that the Tribunal would deal with this Request in writing, the respondents were afforded an opportunity to make written submissions in reply, which they did on December 17, 2013.

4The applicant objects to the jurisdiction of the Tribunal to allow the respondents to make written submissions in reply. This objection is without foundation. The Tribunal has broad powers under the Code and its Rules of Procedure to “determine how a matter will be dealt with” (Rule 1.6) and “to take any other action that the Tribunal determines is appropriate” to ensure the fair, just and expeditious resolution of any matter before it (Rule 1.7(w)). Where oral submissions are heard on preliminary motions, the Tribunal routinely affords the party making the request an opportunity to make submissions in reply. This is common practice among courts and tribunals. Similarly, where a preliminary matter is being dealt with on the basis of written submissions, it is entirely appropriate and well within this Tribunal’s power to afford the requesting party an opportunity to file written submissions in reply.

5This Tribunal has held that the considerations to be assessed in determining a request to amend a response are similar to those applied in relation to a request to amend an application, and specifically include the timing of the request to amend, the scope of the amendment, the reasons for the amendment, and any potential harm to the applicant: see Lachance v. McDonald’s Restaurants of Canada Limited, 2012 HRTO 2091; Hinsley v. Ontario (Community and Social Services), 2013 HRTO 1573; Wedemire v. McDonald’s Restaurant of Canada Ltd., 2013 HRTO 613.

6The timing of the request to amend is obviously problematic, coming so shortly before the scheduled commencement of the hearing in this matter. On October 28, 2013, the respondents originally requested an amendment to their Response to include their submissions filed in support of their request for a summary hearing. After the request for summary hearing was denied, and in the context of addressing a variety of other procedural matters (as dealt with in 2013 HRTO 1972), the respondents withdrew this request and indicated that they intended formally to amend their Response. My previous Interim Decision dated November 28, 2013 directed the respondents to make any request to amend their Response “soon”, which they did on December 1, 2013.

7In relation to the timing of their request to amend, the respondents note that the applicant refused to consent to a two-week extension to file their original Response, which they submit necessitated the filing of an abbreviated “emergency” Response dated October 25, 2012. While I appreciate that the respondents initially may have been pressed for time to file their original Response, this does not explain the lapse of a further year before the respondents initially sought to amend their Response to include their submissions in support of their summary hearing request.

8The respondents next seek to explain their delay in requesting an amendment of their Response on the basis of judicial economy, in that they were making their request for a summary hearing which, if successful, would not have required them to amend their Response. I do not accept this submission. The respondents filed very fulsome submissions in support of their request for a summary hearing, which easily could have been included a request to file an amended Response at that time. Further, this still does not explain the year-long delay before the request for summary hearing was even filed.

9The applicant takes the position that the respondents’ request to amend should be barred on the basis that it was made more than one year after their original Response was due. He relies by analogy on s. 34(2) of the Code which relates to the filing of applications with the Tribunal within one year of the alleged incident. In my view, this analogy is inapt. Section 34(2) will be considered in situations where an applicant seeks to amend an application to raise a new alleged violation of the Code, where the incident relied upon to support the new alleged violation occurred more than one year prior to the requested amendment. This provision otherwise is of no relevance to requests to amend, either by applicants or respondents.

10The next consideration is the scope of the requested amendment. While the respondents seek to make fairly extensive additions to their Response, it is notable to me that they do not seek to alter the paragraphs set out in their original Response, but in most cases merely seek to expand upon them to provide further details or particulars.

11For example, the original paragraph 5 in the Response refers to the “uniqueness” of the respondent law firm and its organizational structure to assert that “the practice culture of the firm is better suited to some lawyers as opposed to others”. The requested amendments expand upon what the respondents identify as the unique features of their firm, with two exceptions. The first exception is in the last portion of proposed para. 5(g) which alleges that the applicant was given a copy of a particular book at the end of one of his interviews and was asked for feedback, but failed to respond. The second exception is para. 5(k) which alleges that it was because of the types of considerations outlined in paragraph 5 of the Response (as proposed to be amended) that it was explained to the applicant several times that “fit” was important to the firm, that the “fit” requirement has resulted in a significant turnover of new hires, and that a Black lawyer who was hired in place of the applicant has “fitted” into the firm’s culture.

12Paragraph 9 of the original Response speaks to the diversity of the respondent law firm. The proposed amendments expand upon this diversity in relation specifically to Black lawyers who were hired to work at the firm, the personal respondents’ individual experiences with discrimination and diversity, the diversity of the firm’s client base, and their experience in hiring foreign-trained lawyers.

13Proposed paragraph 15A of the amended Response includes particulars in response to the applicant’s allegations of age discrimination, failure to investigate and reprisal and certain specific allegations raised by the applicant in the Application regarding what is alleged to have happened in the interview process.

14Proposed paragraphs 16 to 18 of the amended Response set out the respondents’ alternative position that, if discrimination were to be found, the applicant’s claim for compensation for lost income should be limited on the basis that if the applicant had been hired, his employment at the firm would not have lasted long. Proposed paragraph 16 provides particulars to support this position, many of which relate to the applicant’s alleged conduct during the course of this proceeding. Proposed paragraph 17 sets out the respondents’ position that, even if the applicant’s allegations were upheld, he still would not have obtained employment at the firm. Proposed paragraph 18 contrasts the applicant with other recent hires who have remained with the firm.

15Proposed paragraph 19 states that the personal respondent Ms. Helden did not have sole hiring authority and that hiring decisions are a group process.

16With regard to the reasons for the request to amend, the primary concern voiced by the respondents stems from the position taken by the applicant that they should not be allowed to lead evidence at the hearing regarding matters not set out in their original Response.

17With regard to potential harm to the applicant, the respondents take the position that at least some of the proposed amendments were included in their submissions in support of their request for a summary hearing, to which the applicant was able to fully respond. They take the position that other matters, for example statements about what occurred during the interview process, are within the applicant’s knowledge and ability to respond.

18The applicant expresses obvious concern about the late timing of the respondents’ request and its impact on his ability to properly prepare for and proceed with the hearing.

19As is unfortunately all too typical of these parties, both sides have made allegations of bad faith against each other. I have reviewed and considered their submissions in this regard, and will not detail them here. At the end of the day, I am not persuaded by either party’s submissions in this regard, and find that they only serve to add an unnecessary level of “noise” to this proceeding that distracts from the proper consideration of the merits or otherwise of the allegations at issue.

20This is a difficult decision to make. I am extremely concerned about the very late timing of the respondents’ request, which in my view should have been made much earlier notwithstanding that they felt under pressure to file an abbreviated Response by the timeline set out in this Tribunal’s Rules.

21At the same time, I need to be guided by the overarching principles which guide the exercise of this Tribunal’s powers, which are to ensure the “fair, just and expeditious” resolution of matters before the Tribunal. It seems to me that fairness and justice entail the ability of a respondent to fully set out its defence.

22In this regard, I am guided by the provision in Rule 5.7 which relates to a party’s ability to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response or Reply or in the materials filed under Rule 16 (disclosure of documents) or 17 (disclosure of witnesses).

23Rule 5.7 clearly applies to the hearing stage, as Rules 16 and 17 are not required to be fully complied with until 45 days prior to the hearing. This Rule, in and of itself, does not preclude the parties from presenting evidence or making submissions about facts or issues not contained in the Application, Response or Reply, if these facts or issues are contained in the materials filed under Rule 16 or 17. With regard to many of the amendments sought by the respondents, such as many of the particulars provided in support of paragraphs 5 and 9 of the amended Response, these alleged facts either derive from the documents disclosed by the respondents (such as the lawyer hired on September 6, 2011) or properly could have been detailed in the respondents’ witness statements. In such a situation, it would seem to me to be perverse not to allow a respondent to amend a Response to set out particulars that properly could form part of its disclosure of documents or witnesses and about which it would not be precluded by Rule 5.7 from presenting evidence or making submissions at the hearing.

24Even in circumstances where a party seeks to present evidence or make submissions at a hearing about a fact or issue not raised in the Application, Response or Reply or in materials filed under Rule 16 or 17, Rule 5.7 permits the Tribunal to allow the presentation of such evidence or the making of such submissions if “satisfied that there would be no substantial prejudice and no undue delay to the proceedings”. Once again, it seems to me that if the threshold for allowing evidence or submissions at the hearing stage about new facts or issues not previously raised is “substantial prejudice” and “undue delay”, then it would be perverse to apply a lower threshold where a respondent seeks to amend its Response prior to the hearing.

25In the circumstances before me, I am satisfied that no substantial prejudice would be caused to the applicant by allowed the proposed amendments to the Response. As previously stated, many of them could simply have formed part of the respondents’ witness statements as particulars of matters already addressed in the original Response. Other matters raised by the proposed amendments, in my view, the applicant is capable of responding to. I am aware from his submissions that the applicant takes issue with the accuracy or truthfulness of at least some of the proposed amendments, and points to alleged inconsistencies with other material filed by the respondents. In my view, these are matters that can be addressed at the hearing.

26With regard to the issue of whether allowing the proposed amendments would cause “undue delay to the proceedings”, it is not clear to me that they would. I will, of course, afford the applicant an opportunity to file a fresh amended Reply to the amended Response. It also may be that the amended Response will give rise to a further request for production by the applicant, which would need to be considered. However, in my view, the need to afford the applicant an opportunity to take these steps may only necessitate the cancellation of the January 17, 2014 hearing date, and need not disturb the further hearing dates scheduled for late March 2014. As a result, in my view no undue delay would be caused to the proceedings.

27Accordingly, having considered the parties’ submissions and the relevant factors, I allow the respondents’ request to file an amended Response in the form attached as Schedule “B” to their Request for Order. The applicant shall have 14 calendar days from the date of this Decision to file a fresh amended Reply and any further request for production arising out of the amendments to the Response. By this date, the applicant also shall advise the Tribunal and the respondents whether he is prepared to proceed with the January 17, 2014 hearing date, or whether he would prefer this hearing date to be cancelled and the hearing commence on March 24, 2014. If the applicant does make a further production request and still wishes to proceed with the January 17, 2014 hearing date, the Tribunal may establish abridged timelines for responding to any such request and/or may determine that it is not feasible to proceed on January 17, 2014.

ORDER

28For the foregoing reasons, the Tribunal hereby makes the following order:

a. The respondents’ request to file an amended Response in the form attached as Schedule “B” to their Request for Order dated December 1, 2013 is granted; and

b. Within 14 calendar days from the date of this Decision, the applicant may file a fresh amended Reply and any further request for production arising out of the amendments to the Response. By this date, the applicant also shall advise the Tribunal and the respondents whether he is prepared to proceed with the January 17, 2014 hearing date, or whether he would prefer this hearing date to be cancelled and the hearing commence on March 24, 2014.