Ratchford v. 3076337 Nova Scotia Corp., 2014 HRTO 137

Human Rights Tribunal of Ontario

Between:

Ian Ratchford Applicant

-and-

3076337 Nova Scotia Corp. o/a Steamworks and John Brodhagen Respondents

Interim Decision

Adjudicator: Sheri D. Price Date: January 30, 2014 Citation: 2014 HRTO 137 Indexed as: Ratchford v. 3076337 Nova Scotia Corp.

1This is an Application under s.34 of the Code. A hearing in respect of this Application is scheduled for February 7, 2014, in Toronto.

2This Interim Decision deals with two Requests for an Order during Proceedings filed on behalf of the respondents seeking (1) to have the personal respondents removed as parties to the proceeding; and (2) an order permitting three of the respondents’ witnesses to testify by telephone. It also deals with Requests filed by the applicant on January 10 and January 14, 2014, seeking the production of certain documents. This Interim Decision deals with the bifurcation of the hearing in this matter.

Removal of the Personal Respondents Moore and Stokes

3In the Application he originally filed with the Tribunal, the applicant named his former employer, 3076337 Nova Scotia Corp. o/a Steamworks, John Brodhagen, Ross Moore and Earl Stokes as respondents to the Application.

4On January 13, 2014, the respondents filed a Request for an Order during Proceedings seeking to have Ross Moore and Earl Stokes, the owners of the corporate respondent, removed as parties to the proceeding (“the Request”). The applicant opposes the Request.

5Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party to an Application. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 46.3(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

7Having regard to the above-noted principles and the submissions of the parties, I find that Earl Stokes and Ross Moore ought to be removed as personal respondents to the Application.

8In the Application, the applicant alleges that his rights under the Code were infringed when the general manager of the corporate respondent, personal respondent John Brodhagen, made sexually harassing comments to him in his initial job interview and on another occasion during his employment. These allegations, if proven, could not support a finding that Messrs. Moore and/or Stokes are personally liable for infringing the applicant’s rights under the Code. The applicant contends that these respondents failed to properly investigate the applicant’s allegations that he had been sexually harassed by Mr. Brodhagen. He submits that it would be premature to remove Messrs. Moore and Stokes before it is established that they thoroughly investigated his sexual harassment complaint. In my view, however, this is not a compelling reason to maintain Messrs. Stokes and/or Moore as personal respondents to the Application. The allegations regarding the alleged failure to investigate are not, in my view, the sort of allegations that could lead to a finding of personal liability against Mr. Moore and/or Mr. Stokes. Rather, it seems to me that Messrs. Stokes’ and Moore’s involvement in the investigation of the applicant’s sexual harassment complaint was in the course of their normal duties as owners of the corporate respondent. Accordingly, if the Tribunal were to find that the applicant’s rights under the Code had been infringed as a result of the actions of Messrs. Moore and/or Stokes, the corporate respondent would be liable pursuant to s. 46.3 of the Code. In this regard, I note that the corporate respondent acknowledges that it is liable for Messrs. Moore’s and Stokes' conduct. Moreover, there is no suggestion that the corporate respondent would be unable to remedy the alleged infringement of the applicant’s rights under the Code. Finally, insofar as Mr. Moore and Mr. Stokes are expected to testify at the hearing of this matter, I cannot see how the applicant would be prejudiced by their removal as personal respondents to the Application. In the circumstances, it is appropriate to remove Ross Moore and Earl Stokes as parties to the proceeding. The style of cause is amended accordingly.

Request That Certain Witnesses Be Permitted to Testify by Phone

9On January 13, 2014, the respondents also filed a Request seeking to have three of their witnesses, Earl Stokes, Ross Moore and Dominic Paramore, testify by telephone. The respondents submit that these witnesses will give limited evidence in the proceeding and that the credibility of their evidence is not in issue. They submit that, in the circumstances, the witnesses should not be required to travel to Toronto for the hearing. The three witnesses reside in the United States.

10The applicant opposes the Request. He submits that the witnesses in question have the financial means to come to Toronto for the hearing. The applicant also submits that the credibility of the three witnesses is an issue to be determined by the Tribunal. In this regard, he submits that it is essential that the Tribunal observe the witnesses’ “body language” when they testify so that it can determine the credibility of their evidence.

11The general expectation is that witnesses in proceedings before the Tribunal will testify in person. However, pursuant to Rule 3.5 of its Rules of Procedure, the Tribunal may permit witnesses to testify by telephone where it would be fair, just and expeditious to do so, having regard to the nature and extent of their anticipated testimony: Pinkney v. Datex Billing Services, 2009 HRTO 1732. The Tribunal’s power to conduct telephone hearings is also subject to s.5.2(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which states:

The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.

12Having considered the matter, I do not think that it is appropriate to determine the respondents’ Request to have certain witnesses testify by telephone at this point. As noted above, February 7, 2014 is currently the only day scheduled for the hearing of the Application. The applicant will proceed first on that day with his evidence and then the respondents may proceed with those of their witnesses whom they intend to have testify in person (John Brodhagen, for one). I expect this will consume the entire first day of hearing. It is therefore unlikely that we would have sufficient time to hear from Messrs. Moore, Stokes or Paramore on February 7, 2014 in any event. Accordingly, the respondent is not required to have Messrs. Moore, Stokes or Paramore in attendance at the hearing on February 7, 2014. However, these witnesses should be available to testify by telephone in the afternoon of February 7, 2014, if time permits, and if I determine on February 7, 2014 that it is appropriate to grant the respondents’ Request. In the event that I determine that one or more of these witnesses are required to testify in person, either on or after February 7, 2014, another hearing date will be set to hear their evidence.

13In preparing to address this issue at the February 7, 2014 hearing, the parties may find it helpful to review the Tribunal’s decisions in Ivanescu v. Credit Valley Hospital, 2012 HRTO 1211, and Abdallah v. Maple Leaf College of Business and Technology, 2012 HRTO 1695.

Bifurcation

14On November 14, 2013, the respondents filed a Request for an Order during Proceedings seeking, among other things, a potentially significant number of documents, including medical reports, relating to the remedy to which the applicant may be entitled, in the event that he proves that the respondents infringed his rights under the Code.

15It seemed to me that the most expeditious way of proceeding in the circumstances might be to bifurcate the hearing (that is, to hold an initial hearing to determine whether the respondents infringed the applicant’s rights under the Code, and convene a separate hearing to determine the appropriate remedy to be awarded, if liability is established) and to address the respondents’ request for documents related to remedy, if and when the applicant establishes that the respondents infringed his rights under the Code.

16Accordingly, I directed the parties to provide their submissions indicating whether they consented to bifurcation of the hearing by January 13, 2014. The respondents wrote to the Tribunal indicating that they consent to bifurcation of the hearing. The Tribunal has not received any submissions from the applicant on the bifurcation issue and the time for making submissions has now passed.

17Pursuant to s. 41 of the Code and the Tribunal’s Rules of Procedure, the Tribunal has the power to adopt practices and procedures, that, in its opinion, will facilitate the fair, just and expeditious resolution of matters before it.

18In the circumstances of this case, I find that the most fair, just and expeditious manner in which to proceed is to bifurcate the hearing of the Application to deal with the issues of liability and remedy separately. In light of the respondents’ November 2013 production request and the issues that the respondents seek to raise with respect to remedy, it appears that significant time and effort could be expended in the remedy portion of the hearing. That time and effort would be for naught if the Tribunal were to determine that the applicant had not established that the respondents had infringed his rights under the Code. In the circumstances, it makes sense to determine whether the respondents are liable for infringing the applicant’s rights under the Code before hearing the parties’ evidence and argument with respect to remedy.

19Accordingly, the upcoming hearing will be to address only whether the respondents infringed the applicant’s rights under the Code. In the event that liability is established during the initial hearing, a further hearing will be convened to hear the parties’ evidence and argument with respect to the appropriate remedy to be ordered.

Applicant’s Request for Production of Documents and/or Particulars

20On October 28, 2013, the applicant filed a Request for an Order during Proceedings, seeking the production of certain documents by the respondents. The Tribunal determined that Request in a January 6, 2014 Case Assessment Direction. In particular, the Tribunal directed the respondents to produce to the applicant any documents that had not been previously produced pertaining to the respondents’ investigation into allegations that the applicant was sexually harassed or that his rights under the Code were otherwise infringed.

21On January 10 and January 14, 2014, the applicant filed two additional Requests for an Order during Proceeding, seeking the production of documents related to the investigation of his sexual harassment complaint by the respondents, including documents relating to: Ross Moore’s and Earl Stokes’ experience and education conducting human rights investigations; the criteria and/or law applied by them in investigating the applicant’s complaint; steps taken to contact the applicant to ensure his health and to see if he needed medical attention; documents substantiating that Moore interviewed John Brodhagen and five other witnesses; witness statements for those interviewed, indicating how, when, and where they were interviewed, who was present, the questions asked of them and their answers; and any electronic recordings that may exist of the above-noted interviews by Moore.

22In my view, the above-noted documents were covered by the Tribunal’s January 6, 2014 order that the respondents provide the applicant with any and all documents relating to the respondents’ investigation into the applicant’s sexual harassment complaint. It is therefore not necessary for the Tribunal to deal further with the applicant’s request for the above-noted documents. I note that the respondents have also indicated that there are no additional arguably relevant documents to be produced to the applicant.

23The remainder of the applicant’s Requests is not so readily dealt with. Although framed as a production request, to a large extent, it seems to me that the applicant is really trying to use the Form 10 (Request for an Order during Proceedings) to cross-examine the respondents’ witnesses on their recently submitted witness statements. For example, items requested by the applicant in the January 14, 2014 Request include “evidence why Ross Moore did not originally report … that Dominic Paramore … was present during “an” interview with John Brodhagen” and “evidence of the meaning of ‘present during an interview’.” The applicant will have an opportunity to cross-examine the respondents’ witnesses when they testify at the hearing. In my view, it would not be appropriate to order the respondents to respond to what is effectively a written cross-examination in advance of the hearing.

24That said, I have reviewed the 35 items requested by the applicant in his January 14, 2014 Request (the items requested in his January 10, 2014 are all dealt with para. 22 above) with a view to determining which, if any, of the items requested are things that ought to be produced to the applicant in advance of the February 7, 2014 hearing. Having done so, I find that the following documents and/or particulars, to the extent that they exist and/or are attainable, are arguably relevant to the issues to be determined and ought to be provided to the applicant as soon as possible and in any event by no later than February 4, 2014:

1. The date of the interview between the applicant and John Brodhagen in which Dominic Paramour was allegedly present, and in particular whether it was the applicant’s initial job interview;
2. Any electronic recording that may exist of the interview between the applicant and John Brodhagen in which Dominic Paramour was allegedly present;
3. Any documents substantiating that Dominic Paramore was in Toronto and/or Canada on the date of the applicant’s interview with Mr Brodhagen, such as copies of airline tickets, boarding passes, passport stamp, etc.; and
4. A copy of the applicant’s application for a job with the corporate respondent.

Except for the four (4) items noted above, I decline to order the respondents to produce any of the items requested by the applicant in his January 10, 2014 and January 14, 2014 Requests, as they were either covered by the Tribunal’s January 6, 2014 production order or are more properly the subject of cross-examination, subject to any rulings the Tribunal may make at the hearing on admissibility and/or relevance.

25To the extent that the items in para. 24 above do not exist or are unattainable, the respondents are directed to confirm that in writing to the Tribunal and the applicant by no later than February 4, 2014.

Orders

26Ross Moore and Earl Stokes are removed as personal respondents to the Application. The style of cause is amended accordingly.

27The respondents are not required to have Ross Moore, Earl Stokes or Dominic Paramore in attendance at the February 7, 2014 hearing. However, these witnesses should be available to testify by telephone on the afternoon of February 7, 2014 if time permits and if I decide on Februrary 7, 2014 to grant the respondents’ Request to allow any or all of these witnesses to testify by telephone.

28The hearing in this matter will be bifurcated. The hearing on February 7, 2014 will be to hear the parties’ evidence and arguments only with respect to whether the respondents infringed the applicant’s rights under the Code. In the event that liability is established during the initial hearing, a separate hearing will be convened to hear the parties’ evidence and argument with respect to the appropriate remedy to be ordered.

29The respondents are directed to provide the applicant with the documents and/or information identified in para. 24 above by no later than February 4, 2014. To the extent that the items do not exist or are unattainable, the respondents are directed to confirm this in writing to the Tribunal and the applicant by February 4, 2014.