Zaynab Ahmed v. T-Zone Health Inc., 2014 HRTO 43

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zaynab Ahmed

Applicant

-and-

T-Zone Health Inc.

Respondent

INTERIM DECISION

Adjudicator: Ruth Carey

Date: January 2, 2014

Citation: 2014 HRTO 43

Indexed as: Ahmed v. T-Zone Health Inc.

WRITTEN SUBMISSIONS

Zaynab Ahmed, Applicant

Richard Miller, Counsel

T-Zone Health Inc., Respondent

Kristen Bisbee, Representative

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 because of race, disability, sex, family status, and age; and reprisal.

2This Interim Decision is being issued in response to a Request for Order During Proceedings (“RFOP”) filed by the applicant on December 13, 2013. The RFOP seeks: an order amending the Application to include public interest remedies; an order for disclosure of various documents; and an order preventing the respondent from relying on certain documents at the hearing. On December 27, 2013, the Tribunal received the respondent’s Response to a Request for an Order (“RRO”) resisting all of the orders requested in the applicant’s RFOP.

The Request to Amend the Application

3The applicant’s RFOP seeks permission to amend the Application to include two non-monetary remedies as follows:

a. An order requiring the respondent to hire an independent human rights expert to provide training regarding discrimination and harassment to all employees and management; and

b. An order requiring the respondent to hire an independent human rights expert to develop a human rights policy (Anti-discrimination and Anti-harassment) as well as a complaints, accommodation and investigation procedure that complies with the Code.

4The Application as originally filed did in fact request an order “for all employees… as well as management to be properly trained on discrimination and Harassment in the work place”. Therefore, the amendment requested with respect to training described in paragraph 3a. above is unnecessary and that aspect of the RFOP is denied accordingly.

5With respect to the amendment request concerning development of policies, the RRO states that in 2008 the respondent hired an outside professional who helped develop just such a policy. The respondent was self-represented until very recently and the RRO says the failure to indicate such a policy exists in its Response was inadvertent. A version of this policy dated February 22, 2010, has now been provided to the Tribunal and the applicant. As a result, it appears that the request to amend the Application to include policy development as a remedy is now moot and that aspect of the RFOP is also denied.

6That being said, I would draw the parties attention to s. 45.2,2(b) of the Code which says that the Tribunal has the jurisdiction to make orders with respect to future compliance even if no such order is requested.

The Request for Disclosure

7The RFOP requests that the Tribunal order the respondent to disclose a number of documents. The respondent’s answer to this request is that the documents sought have either already been disclosed or do not exist. Assuming this statement to be true, a further production order will not assist the applicant, so this aspect of the RFOP is also denied. If the applicant wishes to challenge the truth of the respondent’s statement she may do so through cross-examination at the hearing.

The Exclusion Request

8The RFOP asks for an order prohibiting the respondent from introducing into evidence at the hearing three documents: an anonymous statement from a former employee of the respondent’s; a statement provided by another employee; and an e-mail dated June 26, 2012, between two of the respondent’s employees. The primary stated reason for this request is that the applicant should not be deprived of the right to cross-examine the authors of these various documents. A secondary reason provided is that the employee statement contains impermissible bad character evidence.

9The RFOP asks that the Tribunal issue an order preventing the respondent from relying on the documents “unless their authors are identified and called as witnesses in the proceeding.”

10The respondent’s RRO identifies the author of the anonymous document and states that the respondent now plans to call as witnesses the authors of all the documents listed in the RFOP. Attached to the RRO is an amended witness list and witness statements. Assuming the respondent produces these witnesses at the hearing, this is a complete answer to the concern expressed in the RFOP with respect to the applicant’s ability to cross-examine the authors of the documents in question. With respect to the question of whether or not the written employee statement contains impermissible bad character evidence; that is an issue better dealt with as an evidentiary question to be addressed if it arises in the context of the hearing.

11Given all of the above, the RFOP shall be denied in its entirety.

Directions with Respect to the Respondent’s New Witness Statements

12As stated above, the respondent was self-represented until very recently and attached to the RRO is an amended witness list and witness statements for all of the proposed respondent witnesses. None of the witness statements provide details or particulars as to what the witness is expected to say. Rather, they all simply state the areas or topics that will be spoken to.

13In C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426, the Tribunal explained, 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. [Emphasis added.]

14Having reviewed the witness statements filed by the respondent I find that they lack sufficient particularity. The respondent will be directed to provide brief witness statements for each of its witnesses that set out the salient details of what the witness is actually going to say.

ORDER AND DIRECTION

15The applicant’s RFOP is dismissed.

16The respondent is directed to deliver to the applicant and file with the Tribunal by January 17, 2014, brief witness statements for each of its proposed witnesses that particularize the testimony to be given.

17If the respondent does not comply, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondent to call the witnesses at the hearing.