Xiao Xing Zhao v. Trademerit Corp., 2014 HRTO 870

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xiao Xing Zhao

Applicant

-and-

Trademerit Corp.

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: June 13, 2014

Citation: 2014 HRTO 870

Indexed as: Zhao v. Trademerit Corp.

WRITTEN SUBMISSIONS

Xiao Xing Zhao, Applicant

Self-represented

Trademerit Corp., Respondent

Alanna Twohey, Counsel

1This Interim Decision explains why the Tribunal is granting the request of the respondents to remove Tarek El-Gillani as a personal respondent and is denying the applicant’s request to prevent the corporate respondent from introducing evidence at the hearing of this Application, which is scheduled to begin on July 21, 2014. It also provides direction to the parties regarding preparation for the hearing.

2The Application alleges discrimination with respect to employment because of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant worked for the respondent as a software developer. He alleges that his termination by the respondent was due to his unwillingness to work excessive hours that impinged on his obligations as a father to two young children. The respondent says he was terminated because he did not do his job well.

3The Application names Tarek El-Gillani, who is the respondent’s Chief Technology Officer and was the applicant’s manager, as a personal respondent. The personal respondent is alleged to have acted in bad faith in reviewing the applicant’s performance and in recommending his termination by the corporate respondent.

4The respondents’ position is that this dispute is about the applicant’s performance and that Mr. El-Gillani acted within the scope of his duties as a manager at all relevant times. The corporate respondent assumes liability for any of his actions and has the means to implement any remedy the Tribunal might order if it were to find that discrimination occurred in this case.

5The applicant did not respond to this request.

6As I read the documents filed by the parties, and in light of the fact that the applicant has not opposed this request, I conclude that Mr. El-Gillani should be removed as a respondent. The reasons for this are that the corporate respondent is alleged to be liable for the same conduct as Mr. El-Gillani, it is prepared to assume liability for his conduct and I have no reason to think that it could not implement any remedy that the Tribunal might order if the applicant succeeds in this case. In addition, I have not been provided with any information to think that Mr. El-Gillani’s conduct would merit making an award against him personally, over and above any remedy that might be ordered against the corporate respondent. There is no prejudice to any party in removing him as a respondent.

7Mr. El-Gillani will be giving evidence at the hearing and the applicant will have an opportunity to question him about any aspect of his conduct while the applicant was employed by corporate respondent.

8The respondents’ request is granted.

9The applicant has asked that the Tribunal refuse to allow the respondent to present evidence at the hearing on the grounds that it has not disclosed arguably relevant documents. The respondent has disclosed to the applicant both the documents that it considers to be arguably relevant and those that it intends to rely upon at the hearing.

10I am not prepared to grant the applicant’s request because it is not clear to me what arguably relevant documents the respondent is alleged to be withholding. It is not sufficient for the applicant to request “all communication scripts between the applicant and the respondent”, as many of those may have no bearing on the issues in dispute. On the other hand, one of the issues in dispute is whether the applicant performed well in his job or poorly. Another issue is whether the applicant made any requests for accommodation regarding his obligations as a parent and, if he did, how the respondent dealt with any such requests. If the respondent has not already provided all communications to the applicant regarding these issues, then it is directed to do so now.

11If the respondent is going to assert that any of these documents should not be disclosed because they are privileged, then it needs to support that claim in accordance with the procedure set out in the Tribunal’s decision in Gorgani v. Sybase Canada, 2011 HRTO 415 at para. 32. This will enable the Tribunal to then assess the validity of the respondent’s claim.

12The applicant’s request is denied, but if the respondent has not disclosed any documents relating to the applicant’s performance or any accommodation requests he may have made, it is directed to do so now.

13The deadline for the parties to disclose their witness lists, witness statements and hearing documents to each other and the Tribunal has now passed. The applicant has not provided any of these to the respondent or the Tribunal.

14By no later than 10 days from the date of this Interim Decision, the applicant must deliver to the respondent and file with the Tribunal the documents he intends to rely upon at the hearing, a list of his witnesses and a brief statement describing what his witnesses will say when they testify. If the applicant has not complied with this direction by that date, the Application may be dismissed as abandoned.

15The applicant is reminded that he must also submit a witness statement for himself, assuming he intends to testify at the hearing. However, if the applicant only intends to testify about the facts already contained in his Application, it is sufficient for him to confirm this in writing by the same date.

order

16The request to remove Mr. El-Gillani as a respondent is granted and his name will be removed from the title of these proceedings.

17The request to prevent the respondent from introducing evidence at the hearing is denied. If the respondent has not provided the applicant with any documents relating to his job performance or any accommodation requests he may have made, it is directed to do so now.

18The applicant is directed to provide the respondent and the Tribunal with the documents he intends to rely upon at the hearing, a list of his witnesses and a brief statement describing what he and his witnesses will say when they testify. If he does not do so within 10 days of the date of this Interim Decision, the Tribunal may decide that he has abandoned his Application.