Lane v. Canadian Tire Corporation Limited, 2014 HRTO 404

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Lane Applicant

-and-

Canadian Tire Corporation Limited Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: March 21, 2014 Citation: 2014 HRTO 404 Indexed as: Lane v. Canadian Tire Corporation Limited

WRITTEN SUBMISSIONS

Melissa Lane, Applicant Ian Hurley, Counsel

Canadian Tire Corporation Limited., Respondent Robert Bayne, Counsel

Introduction

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 on the basis of marital status and family status. The hearing for this Application has already commenced and is now adjourned and further dates will be scheduled. This Interim Decision addresses the applicant’s request to call a further witness, the respondent’s Vice-President of Distribution Operations, when this matter continues on the next scheduled hearing date.

BACKGROUND

2The applicant’s employment was terminated by the respondent after the respondent had undertaken an extensive investigation and had concluded that the applicant was, along with other employees, part of a concerted effort to defraud the respondent. The investigation centred on whether a number of employees, including the applicant, had abused and improperly benefited from the respondent’s practice of selling damaged consumer goods to employees (with revenues going to charity). The applicant alleges that the termination of her employment was not a result of her conduct, but because the respondent did not want to continue to employ her having terminated the employment of her husband and other family members for participating in this alleged effort to defraud the respondent. The applicant alleges that the termination of her employment constitutes discrimination based on marital status and family status.

3A hearing of the Application was scheduled for February 10 and 11, 2014. Prior to the hearing the applicant identified one potential witness, herself. Prior to the hearing the respondent identified five potential witnesses including an external investigator who had been retained to assist with the respondent’s investigations of misconduct; the respondent’s Vice-President of Human Resource Solutions and the respondent’s Vice-President of Distribution Operations. The respondent provided witness statements for each of its witnesses. Of note the witness statement of the Vice-President of Distribution Operations indicates that he would testify about the damaged goods program, the respondent’s Code of Business conduct and policies regarding theft, and why the applicant’s employment was terminated.

4The hearing took place as scheduled. The applicant testified on February 10 and for part of February 11, 2014. The respondent then proceeded with its case by calling the external investigator as a witness. The investigator’s testimony lasted until the end of the hearing on February 11, 2014, at which time there was a discussion about the scheduling of further days of hearing.

5The respondent indicated at the outset of the hearing that it might not call the Vice-President of Distribution Operations as a witness and then more explicitly stated on February 11 that it would not call him to testify. When discussions were taking place on February 11 about the continuation of the hearing, the applicant indicated that she wished to call the Vice-President of Distribution Operations as a witness. The respondent objected to this request on the basis that the respondent had begun its case and that the applicant should have called this witness if it intended to rely on his evidence. It was then agreed that a conference call would be held in order for the parties to make submissions on whether the applicant should be allowed to call the Vice-President of Distribution Operations as a witness. The conference call was held on March 13, 2014.

SUBMISSIONS

6I do not intend to summarize all of the parties’ submissions given that my decision as to whether the Vice-President of Distribution Operations should be allowed to testify is based specifically on the potential relevance of his evidence.

7In brief, the applicant submits that there is nothing in the Tribunal’s Rules of Procedure or in the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, as amended, that would prevent the applicant from summonsing the Vice-President of Distribution Operations to appear as a witness for the applicant when the hearing was scheduled to resume.

8The applicant submits that by the respondent’s own admission, the Vice-President of Distribution Operation’s evidence is relevant given the respondent’s stated intention to call this individual as a witness. The applicant submits that the respondent’s case is based, in part, on a contention that the applicant failed to meet the respondent’s Code of Business Conduct when she received damaged goods that had been set aside for her by both her father-in-law and her husband. She submits that the Vice-President of Distribution Operations may have received a similar benefit and consequently it was important that the applicant have the opportunity to establish whether this was the case by having this individual testify.

9The respondents submit that it would be counter to the principles of natural justice and procedural fairness to allow the applicant to call the Vice-President of Distribution Operations at this stage of the hearing. It submits that the if the applicant had determined that she wanted to call the Vice-President of Distribution Operations because she was of the view that this individual was treated differently than she was -evidence she believed supported her case- she should have called him as a witness as part of her case and before the respondent began its case. It submits that the applicant is attempting to split her case, to call evidence after the respondent has begun its case. The respondent submits it is not fair to split a case that the applicant should be required to present her case in totality before the respondent begins its case so that the respondent knows the case it has to meet. It cites Allcock Laight & Westwood Ltd. v. Patten, Bernard and Dynamic Displays Ltd., 1966 CanLII 282 (ON CA), [1967] 1 O.R. 18 (Ont. C.A.), and R. v. Krause, 1986 CanLII 39 (SCC), [1986] 2 SCR 466 to support this contention.

10The respondent submits that it is open to the respondent to decide which of its identified potential witnesses it wants to call once it knows the case it has to meet and that it is under no obligation to call all of its witnesses. It submits that if the applicant wanted to hear evidence from the Vice-President of Distribution Operations (or any other respondent manager) it could have summonsed that witness prior to the hearing.

11The respondent further submits that the evidence the applicant wants to elicit from the Vice-President of Distribution Operations is also not proper reply evidence in that it is intended as evidence to buttress the applicant’s original evidence (and the respondent has not finished its case).

12The respondent also submits that the evidence of the Vice-President of Distribution Operations is not relevant in that he was not involved in the investigation nor the decision to discipline the applicant and other employees, a decision it states was made by the Vice-President of Human Resource Solutions who will be testifying for the respondent. The respondent submits this decision was made without consultation with the Vice-President of Distribution Operations.

13In reply the applicant submits that she is not trying to split her case nor call reply evidence. She submits that she did not call the Vice-President of Distribution Operations as a witness because she expected he would be a hostile witness and that she reasonably expected that she would have the opportunity to cross-examine him when he was called by the respondent. She submits that she has been prejudiced by the respondent’s decision not to call the Vice-President of Distribution Operations. She reiterated that the evidence of the Vice-President of Distribution Operations would be relevant in that it could help establish whether he benefitted from the sale of damaged goods and that consequently the decision to discipline the applicant for similarly benefitting from the sale of damaged goods was discriminatory, as alleged.

DECISION AND ANALYSIS

14The applicant’s request to call the Vice-President of Distribution Operations as a witness is denied. I do not find that his evidence would be potentially relevant to the decision I need to make as to whether the termination of the applicant’s employment was discriminatory.

15It is true that the respondent had considered calling the Vice-President of Distribution Operations as a witness and his intended evidence, as described in his witness statement could be considered relevant. However, the applicant’s specific stated interest in calling this individual as a witness is to determine whether he also received benefits from the sale of damaged goods. It is this evidence that I find not to be relevant to the issues in dispute and is the basis for denying the applicant’s request.

16The evidence that is currently before me is that the Vice-President of Distribution Operations, a senior manager for the respondent, was not one of the subjects of the investigation into an alleged conspiracy to defraud the respondent. The respondent’s case is that the applicant, along with others who were investigated (the applicant, the applicant’s family members and others) were appropriately disciplined. While it may be relevant to consider how the applicant was treated relative to others who were investigated and disciplined, I do not find it would be relevant or necessary to my decision to determine what benefits, if any, the Vice-President of Distribution Operations may have received in order to assess the respondent’s actions in relation to the applicant.

17The further information before me is that the Vice-President of Human Resource Solutions, who, following the respondent’s investigation decided what disciplinary measures would be taken including the termination of the applicant’s employment and did so without the proposed witnesses input. Accordingly, the evidence of the Vice-President of Human Resource Solutions will be of importance in assessing whether the respondent’s rationale for its actions are non-discriminatory. However, I do not find that testimony of the Vice-President of Distribution Operations is necessary for me to make this assessment.

18Under these circumstances I choose to make no ruling on the issue of whether it would be counter to the principles of natural justice and procedural fairness to allow the applicant to call this proposed witness at this stage of the hearing.

19The Tribunal will proceed to schedule two further days of hearing.