Shahin Shirmohammadi v. 2121200 Ontario Inc., 2013 HRTO 35

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahin Shirmohammadi

Applicant

-and-

2121200 Ontario Inc., 2121812 Ontario Inc. o/a Ganz, Randy Langdon, Mohd Saheed Bin Maideen, Chris Kempling and Karen Butts

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: January 9, 2013

Citation: 2013 HRTO 35

Indexed as: Shirmohammadi v. 2121200 Ontario Inc.

APPEARANCES

Shahin Shirmohammadi, Applicant

Sajjad Najem, Representative

2121200 Ontario Inc., 2121812 Ontario Inc. o/a Ganz, Randy Langdon, Mohd Saheed Bin Maideen, Chris Kempling and Karen Butts, Respondents

Jed Blackburn, Counsel

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 15, 2010, alleging discrimination with respect to employment on the basis of disability, race, place of origin, ethnic origin, creed and age. Some of the allegations have been dismissed in Interim Decisions (2011 HRTO 773 and 2012 HRTO 1091) so that the only allegations remaining are discrimination because of disability and creed.

BACKGROUND

2The hearing of evidence related to those allegations was scheduled to begin on the morning of November 23, 2012, but was adjourned. In the Interim Decision dated November 28, 2012 granting the adjournment, 2012 HRTO 2225, the Tribunal directed the parties as follows:

If the applicant wishes to pursue her request for further disclosure, then she is directed to file a Request for Order During Proceedings, including submissions that itemize each document requested, why she believes each document exists and to which allegation she believes each document is relevant. Any such Request by the applicant must be filed with the Tribunal and delivered to the respondents within 14 days of the date of this Interim Decision.

If the respondents wish to pursue their requests for further particulars, then they must file a Request for Order During Proceedings specifying what they need to be clarified by the applicant, specifically referring to paragraph numbers in the Application. Any such Request by the respondents must be filed with the Tribunal and delivered to the applicant within 14 days of the date of this Interim Decision.

3The respondents filed a Request for Order During Proceedings (RFOP) for further particulars within the 14 days as per the Interim Decision. The applicant did not file a RFOP, but filed a Response to the respondents’ RFOP dated December 26, 2012. In it, the applicant requested, amongst other things, “An order that the Respondent should not hide nor should they misrepresent the facts and provide all the documents requested with proper reasons previously [sic]…” The applicant did not comply with the direction in the Interim Decision of November 28, 2012 to itemize each document requested, nor did she explain why she believes missing documents exist or explain why they are relevant.

4At a half-day teleconference hearing on January 7, 2013, the Tribunal dealt with the respondents’ RFOP and the applicant’s request for further documents.

RESPONDENTS’ REQUEST FOR PARTICULARS

5The respondents’ counsel argued at the teleconference hearing that the Application is so lacking in particulars that it should be dismissed.

Disability

6I refused the request to dismiss the allegations relating to disability, noting certain paragraphs in the Application that the applicant’s representative confirmed contain his client’s two allegations with respect to disability: 1) that the respondents failed to accommodate the applicant after she injured her finger at the end of 2008; and 2) that the respondents terminated her employment in 2009 because she had injured her finger and required accommodation.

Amendment

7I agreed with counsel for the respondents that the first sentence of paragraph 39 of the Application is somewhat unclear. It states, “The Respondent not only accommodate the Applicant time off from work or place her in light duty, they rather fired her and pretended that they are short on labour [sic].” The applicant’s representative confirmed that he drafted the sentence and meant, “The respondents did not accommodate the applicant with time off from work or place her on light duties, but rather they fired her and pretended that they were short on labour.” I granted the applicant’s request to amend the Application in order that the unclear sentence be replaced with the above more clear sentence.

Specific Particulars Ordered

8I reviewed with the parties’ representatives the paragraphs of the Application relating to the allegation that the applicant was not accommodated after she injured her finger(s), in particular, paragraphs 34, 36 and 37. The applicant’s representative was unable to confirm that the “doctor’s note” referred to in paragraphs 34 and 36 was a separate note from the Functional Abilities Form (“FAF”) completed by the applicant’s doctor on December 29, 2012. The applicant’s representative stated that he understood the Application might include allegations about further injuries, but was unable to say whether there were any further injuries to the applicant, after December 2009.

9He agreed that he would provide any medical documents, other than the FAF, that are relevant to the applicant’s requirement for accommodation after December 2009, or confirm that the reference to “doctor’s note” in the Application at paragraphs 34 and 36 is in reference to the FAF. He also agreed to provide particulars with respect to any further injury the applicant might have sustained subsequent to December 29, 2009, and particulars with respect to when, where, how and to whom any such injury was described to the respondents and whether the applicant made any request for accommodation. If she did make a request for accommodation, then he must also provide particulars with respect to when, where, how and to whom any such request for accommodation was made.

10The above particulars and clarifications that the applicant’s representative agreed to provide must be delivered to the respondents and filed with the Tribunal within 14 days of this Interim Decision.

Creed

11With respect to the allegation of discrimination because of creed, I noted that while particulars were lacking in the Application, the applicant’s Replies and correspondence described harassment on the basis of creed. I therefore refused to dismiss the allegations of discrimination because of creed.

12The applicant’s representative agreed that the allegations focus on what was described in the applicant’s Reply of May 18, 2010 as “…in numerous days that supervisors mocked and joked about the Applicant religion that if she finished her prayers before she came to work or they placed their hands to their hears as Muslims pray [sic].” The applicant’s representative confirmed that Mr. Langdon, one of the personal respondents, was primarily involved in the taunts, and agreed to confirm what other supervisor participated. He confirmed that the supervisors placed their hands on their “ears” not their hearts. He agreed to provide more particulars in clear paragraph form with respect to the taunts, including details clarifying exactly who was involved, and, as much as possible given his concern that his client might not remember exact details, what the words and gestures were, and where and when they were made. This paragraph or paragraphs he agreed would form the answer to question A22 on the Application Form which had been completed with a mere reference to “Schedule A” and which he agreed he would request to amend.

13The applicant’s particulars to be inserted in this amended answer to question A22 of the Application Form must be filed at the Tribunal and delivered to the respondents within 14 days of this Interim Decision.

APPLICANT’S REQUEST FOR DISCLOSURE

14The applicant’s representative argued at the teleconference hearing that his client’s request for disclosure should be granted despite his failure to comply with the Tribunal’s directions in the Interim Decision of November 28, 2012. He referred to his wife and child’s car accident on November 23, 2012, which is why the hearing that day ended early, and explained that his family’s injuries made it too difficult for him to comply with the directed timeline. He offered no reason for his failure to structure his requests in his Response to the RFOP dated December 26, 2012, which did not include an itemized list of documents and arguments about their relevance. He argued that the list had already been provided in a letter to the Tribunal dated October 24, 2012, a letter which responded to a Case Assessment Direction to confirm what documents the applicant intended to rely upon.

15The respondents’ counsel objected to the applicant’s request for disclosure given the failure of the applicant’s representative to comply with the direction in the November 28, 2012 Interim Decision. The respondents’ counsel pointed to the numerous times that the applicant’s representative has not complied with the Tribunal’s directions and Rules of Procedure, and argued that his clients have been put to significant expense because the applicant’s representative has ignored his responsibility to comply with them.

16I agree that the applicant’s representative has been remiss in complying with the Tribunal’s Rules and directions throughout the processing of the Application; however, I note that the lateness of the request for disclosure is only two weeks, and the hearing is not until March 2012 so that the prejudice to the respondents is minimal. Given the applicant’s representative had already indicated to the respondents and to the Tribunal which documents the applicant seeks, and the reasons for their relevance, in the letter of October 24, 2012, I am prepared to deal with the applicant’s request for disclosure.

i) The first request for disclosure

17The first document or set of documents the applicant seeks is one which will provide “Records, dates and particulars of the events in relations to the Applicant injuries from the time she started working and up to the time she was fired by the Respondent [sic].” The reason for this request is, “I would like have the date and particulars of the events that caused and injured my client not only for the last time, but there were at least five incidents that took place during my client’s employment. I would like to have a full report to see how the Respondent handled the situation.”

18The applicant’s representative confirmed at the teleconference hearing that the Application contains allegations with respect to disability that either relate to an alleged failure of the respondents to accommodate the applicant’s injured finger in late 2008 and early 2009, or to an allegation that they terminated her employment because of her disability (injured finger). With respect to injuries the applicant is alleged to have sustained earlier in her 10 years of employment with the respondents, the applicant’s representative could not say when those injuries were sustained, nor could he say how the respondents treated the applicant once they became aware of the injuries. He argued, however, that he wants to find out if they ignored her injuries the way he alleges they ignored her finger injury. He believes that with documents he may discover that the respondents treated the applicant in the past as they treated the applicant in 2008/9.

19Given the applicant’s representative’s confirmation of why the applicant alleges discrimination because of disability, the applicant does not appear to claim that the respondents failed to accommodate any of her injuries prior to her injury at the end of 2008, nor has the Application implied that the applicant’s previous injuries affected the termination of the applicant. I therefore fail to see the relevance of documents which will relate to injuries in previous years.

20Accordingly, I refuse at this time to order the disclosure of documents related to records, dates and particulars of events related to the applicant’s injuries from the time she started working and up to the time of her terimination. I do, however, agree that documents related to the applicant’s injury to her finger in 2008 are arguably relevant, and, to the extent that the respondents have not disclosed them already, they must do so within 14 days of this Interim Decision. If the respondents have already disclosed all documents in their possession related to the finger injury, then they must confirm so.

ii) The second request for disclosure

21The applicant seeks “documents related to all safety measures in the Cold Room and the company” and the applicant’s representative clarified that these documents he seeks are photographs which he believes will demonstrate that the applicant was isolated in the cold room where she worked alone so that it was an unsafe environment. It does not appear that the applicant worked in the cold room when she injured her finger and requested the respondents to accommodate her. I therefore fail to see the relevancy of such photographs, and I remind the applicant’s representative that the Tribunal does not address work safety issues unless they are related and relevant to a duty to accommodate an injury already sustained. This request is denied.

iii) The third request for disclosure

22The applicant seeks documents related to the maintenance of the cold room. The applicant’s representative stated in his October 24, 2012 letter that the reason for requesting these documents is “because my client requested and reported many malfunctioning of the devices and based on the Respondent responds that they always attended to repair or fix the problems [sic].”

23I disagree with the applicant’s representative that the maintenance of the cold room is relevant to whether the respondents accommodated the applicant’s injured finger given that it appears that she did not work in the cold room after she reported her injured finger. This request is denied.

iv) The fourth request for disclosure

24The applicant’s representative clarified that the fourth item in the list of disclosure requests in his letter of October 24, 2012 is the same as the second request. It is therefore denied.

v) The fifth and sixth requests

25The applicant also seeks a list of employees who worked in the cold room during and after the applicant’s employment, as well as the current state of the cold room. The applicant also wishes to know if machines instead of people now perform the work in the cold room. The applicant’s representative argued that whether there are employees working in the cold room is relevant to whether the respondents indeed downsized, which is their reason for terminating the applicant’s employment. The applicant’s representative argued that information about whether machines are now doing the work in the cold room is relevant to whether the work had been safe for people.

26I do not agree that that the safety of cold room duties is relevant to the determination of whether the respondents failed to accommodate the applicant’s injury in circumstances where the applicant did not work in the cold room after she reported it; however, the respondents’ counsel agreed to provide the applicant with information about whether anyone worked in the applicant’s position in the cold room since she worked in the position. He agreed to describe any cold room duties and positions that may have remained or were created or recreated after the applicant left, and the applicant confirmed that this information would be sufficient. I therefore order the respondents to do so within 14 days, but I direct that the description of duties and positions in the cold room need only cover the 2009 calendar year.

vi) The seventh and ninth requests

27In the October 24, 2012 letter, the applicant’s representative seeks lists of employees who worked in the same warehouse location as the applicant and whose employment was terminated or who were hired since the termination of the applicant’s employment. The respondents’ counsel agreed to provide details to show the general labourers in the applicant’s warehouse whose employment was terminated or who were in 2009 hired, but he could not confirm that his clients would agree to identify them by name given that his clients may find themselves liable for breaching their privacy.

28I agree that information about the terminations and hirings of general labourers in 2009 in the applicant’s warehouse is relevant to whether the respondents downsized, which is relevant to whether a reason that the respondents terminated the applicant’s employment was because of disability. Within 14 days, the respondents are ordered to provide this information, including the employees’ start and end dates.

29I do not agree that the names of the employees are necessary at this stage, but the applicant may renew the request for names at the hearing after her representative’s cross-examination of the respondents’ witnesses on the makeup of general labourers in the applicant’s warehouse in 2009, depending on the evidence of the respondents’ witnesses.

vii) The eighth request

30The applicant seeks a list of employees with “the same/similar background” as her. The applicant’s representative explained that he wanted to know if the applicant was the only Iranian person employed by the respondents at the warehouse where she worked. In my view, even if the applicant were the only Iranian employee at the warehouse, such information would not be relevant to whether the respondents discriminated against her because of disability or creed. This request is refused.

31I am seized.