Moore v. Ferro & Company, 2015 HRTO 1006

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philton Moore Applicant

-and-

Ferro & Company, Lou Ferro and Ellen Helden Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: July 29, 2015 Citation: 2015 HRTO 1006 Indexed as: Moore v. Ferro & Company

WRITTEN SUBMISSIONS

Philton Moore, Applicant Self-represented

Ferro & Company, Lou Ferro and Ellen Helden, Respondents Stacey Ball, Counsel

1This Interim Decision is written to address a Request for Order by the applicant dated October 24, 2014, with written submissions arising out of this Request for Order completed on February 16, 2015. I apologize to the parties for the delay in getting to this matter.

2The Request for Order filed by the applicant seeks the following: (1) leave, if necessary, to amend his Application to raise further allegations of reprisal; (2) leave to amend the remedy sought in the Application; (3) an extension of time for the applicant to file additional relevant documents and a revised witness statement; (4) an order requiring the respondent to call a witness or otherwise provide evidence; and (5) an order for further disclosure of documents or information.

3I will address each of these requests in turn.

Request to amend to add further allegations of reprisal

4The applicant raised further allegations of reprisal which post-date the Application in his Response to the respondents' Request for a Summary Hearing and in his Reply. He takes the position that, as these allegations are set out in his Reply, it is not necessary for him to seek leave to amend his Application to include these allegations.

5I disagree. Where an applicant is raising new allegations upon which he is asking this Tribunal to make a finding of a violation of the Code in addition to what is set out in the Application, the proper course of action, generally, is to request leave to amend the Application to include these allegations. The reason for this is that, if the new allegations only appear in the Reply, the respondents are denied the opportunity to formally respond to these new allegations through an amended Response, and the Tribunal and the applicant are deprived of the benefit of the respondents' amended Response and the respondents' position on the new allegations. Accordingly, in my view, the applicant is required to obtain leave from this Tribunal to amend his Application to raise the new reprisal allegations.

6In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

7In my view, these factors militate in favour of granting the amendment as requested. In this regard, I note that the reprisal allegations are basically a continuation of the allegations as raised in the Application. I also note that the respondents have been on notice of these allegations, through the applicant's Response to their Request for a Summary Hearing and through his Reply, for some considerable period of time now. No specific prejudice is alleged by the respondents regarding their ability to respond to the new allegations.

8In the material filed by the parties in relation to the applicant's Request for Order, an issue has arisen arising out of an affidavit filed by the respondents as part of their response. Typically, in making or responding to a Request for Order, the parties are not required to file affidavit evidence unless directed by this Tribunal to do so. Requests for Orders generally are dealt with by this Tribunal on the basis of the parties' submissions. If it appears from the parties' submissions that there are contested facts which need to be determined in order to decide the request, then the Tribunal will provide direction to the parties regarding the process by which any such contested facts will be determined. In the vast majority of situations, this is not necessary.

9In this particular case, it is not necessary to determine contested facts in order to decide the applicant's requests. The main burden of the respondents' affidavit is that the applicant has unfairly characterized certain e-mails and correspondence sent to him by the respondent Lou Ferro by adding his own emphasis to certain words used in these communications. This readily could have formed part of the respondents' written submissions, and no affidavit was required to make this point. I have reviewed the actual text of the communications sent by Mr. Ferro to the applicant, and am well aware of where the applicant has added his own emphasis.

10The respondents take the position that the applicant's request to amend is statute-barred under the Code, on the basis that virtually all of the new reprisal allegations are based on events that occurred more than one year prior to the making of the request to amend by the applicant on October 24, 2014.

11Strictly speaking, the one-year time limit in s. 34(1) of the Code applies only to when a person may file an Application with the Tribunal and not to requests to amend an Application. The Tribunal can, and does, permit amendments to Applications outside of the one-year period contemplated in s. 34(1) of the Code without requiring applicants to satisfy the test under s. 34(2) of the Code: see Kamal v. Peel Condominium Corporation No. 51, 2015 HRTO 53 at para. 39. However, in dealing with requests to amend, the Tribunal has taken into account the expectation reflected in s. 34 that human rights applicants will bring their allegations forward in an expeditious manner and not unduly delay in alerting respondents to the case against them: Khokher v. Intercon Security Limited, 2011 HRTO 1493; Shakhnazarov v. George Brown College, 2011 HRTO 1917; Anderson v. Stieber Berlach LLP, 2012 HRTO 1471; Arthur v. Canadian Tire Corporation, 2012 HRTO 1904 at para. 21-22; Killeen v. Soncin Construction, 2013 HRTO 350 at para. 66-69.

12Here, in my view, the applicant did raise his allegations in an expeditious manner in his Response to the respondents' Request for Summary Hearing and in his Amended Reply, and in any event filed his request to amend within one year of the last incident in an alleged series of incidents, which he alleges commenced with Mr. Ferro's letter of July 25, 2013 and culminated in his e-mail of October 29, 2013. The references to Mr. Ferro's September 2011 e-mail correspondence are not new allegations of reprisal, as they were already raised in the original Application, but rather as I understand it are being referenced to support the applicant's interpretation of the 2013 communications as further acts of reprisal.

13The respondents also raise an issue regarding a lack of clarity in terms of the precise amendments that the applicant is seeking to add to his Application. The amendments that the applicant seeks to make to his Application appear to be as set out in paras. 34 to 57 of his written submissions in support of his Request for Order.

14I share the respondents' concern about the manner in which the applicant has added his own emphasis to the actual text as sent by Mr. Ferro, without it being made clear in many cases that this is the applicant's emphasis. In my view, it is not improper for a party to provide its own emphasis to highlight certain key words used in a communication, as long as it is made clear that the emphasis has been added. Typically, emphasis is indicated by underlining or italicising the words to be highlighted, rather than by putting those words in capitals or bold.

15Accordingly, while I am granting the applicant's request to amend his Application to raise the post-Application reprisal allegations, I am directing the applicant to put his amendments in the following form. The applicant shall put his amendments as set out in paras. 34 to 57 of his written submissions in support of his Request for Order in the form of a stand-alone document entitled Appendix II to his Application. The applicant will remove all bolding and capitalization from this document, unless it appears in the communication as originally sent to him. If the applicant wishes to emphasize any particular words used by Mr. Ferro, he is to merely underline the words and then make clear that this is his own emphasis by adding the words "(emphasis added by applicant)" at the end of the quoted communication. The applicant also shall remove his own internal commentary from quoted communications, which currently appear in square brackets. The new Appendix II also shall not include: the words in para. 55 after the word "retaliate" (as the remaining language is a submission in support of his request to amend); the third sentence of para. 56 (also a submission in support of the request to amend); and the entirety of para. 57 (also a submission in support of the request to amend). With the deletion of para. 57, I note that the word "firstly," also should be removed from the beginning of para. 56.

16The applicant shall serve and file his amendments in the form indicated in the previous paragraph within 14 calendar days of the date of this Interim Decision. The respondents shall have 35 calendar days to serve and file their Response to these amendments from the date on which they are served with the applicant's amendments. The response to the amendments shall be in the form of a document entitled "Schedule B to the Amended Response". The applicant shall within 14 calendar days from the date he is served with the respondents' response to his amendments to file any reply, which shall be in the form of a "Schedule A to the Applicant's Amended Reply".

Request to amend claim for compensation

17As currently filed, the Application includes a claim for compensation in the amount of "$35,000 in special damages and $20,000 in general damages for mental anguish, and $25,000 for breach of [the applicant's] right to be free from discrimination".

18The applicant seeks to amend the Application to increase his claim for general damages in the amount of $100,000, for special damages in the amount of $30,000, and for mental anguish and his right to be free from discrimination in the amount of $50,000.

19The Tribunal has generally granted requests to amend remedy when requested to do so: Fernando v. Metro Toronto Convention Centre Corporation, 2014 HRTO 1140. Accordingly, the applicant's request is granted. He may include his amended claim for compensation as part of Appendix II to his Application to be filed in accordance with the directions provided above. I note, however, that the Tribunal no longer makes a separate assessment of "mental anguish" damages as it did prior to the 2008 amendments to the Code. Claims for compensation for the non-pecuniary impact of a Code violation are now addressed under this Tribunal's authority to award "compensation for injury to dignity, feelings and self-respect", which are sometimes also referred to in the caselaw as "general damages".

Request for extension of time to file documents and witness statements

20The applicant requests leave, if required, to comply with his disclosure obligation in order to provide a list of all further documents that have come into his possession since the parties previously were required to exchange arguably relevant documents, and a copy of any such documents.

21In my view, the parties are under a continuing obligation to disclose to each other documents that come into their possession or come to their knowledge after the deadline for disclosure under Rule 16.1 of the Rules has expired. To hold otherwise would defeat the purpose of ensuring full documentary disclosure.

22If arguably relevant documents have come into the applicant's possession, or have come to his knowledge since he disclosed his arguably relevant documents, then he should disclose these documents to the respondents as soon as possible. If either party intends to rely upon any such subsequently disclosed documents for the purpose of the hearing, then notice of this should be given to the opposing party and these documents should be filed with the Tribunal 45 days prior to the first scheduled hearing day in accordance with Rules 16.2 and 16.3. If any prejudice is alleged regarding the late disclosure of any such documents, this may be raised at the hearing.

23The applicant also requests an extension of time for delivery of his detailed and corrected witness statement. In my view, this is unnecessary. While Rule 17.1 states that witness statements are to be delivered 45 days prior to the first scheduled hearing day, the reality in this matter is that new hearing dates for this proceeding have not yet been scheduled. In my view, as long as the applicant delivers any such revised witness statements at least 45 days prior to the commencement of the hearing, he will be in compliance with the Rules.

Request to compel witness evidence

24The applicant requests an order pursuant to Rule 1.7(k) for the respondents to produce a witness at the hearing, namely a lawyer named Andrew Rudder who was hired by the respondent law firm. The applicant states that Mr. Rudder's testimony is necessary and relevant to the hearing on the bases: that the respondents have alleged that Mr. Rudder was hired instead of the applicant and was better qualified than the applicant; that the respondents allege that Mr. Rudder was hired on September 6, 2011 prior to the applicant's e-mail of September 15, 2011, which the applicant contests; that the respondents have not disclosed documents confirming Mr. Rudder's duties, wages and benefits or when Mr. Rudder first applied for the position.

25In response to the order made in my Interim Decision in this matter dated November 28, 2013 (2013 HRTO 1972), the respondents confirmed by letter dated December 11, 2013 that Mr. Rudder was interviewed by the respondent law firm on July 13, 2011 and again on July 21, 2011, and was hired on September 6, 2011. The respondents also disclosed Mr. Rudder's CV and indicated that they did not have a cover letter. At para. 45 of that Interim Decision, I also noted in response to the applicant's request for disclosure of "documents evidencing the wages and/or salary and benefits and perks associated with all of the jobs or positions for which he applied, was interviewed or was invited to be interviewed", that the respondents had stated that there are no such documents but stated that the base salary was $75,000 annually and there was an ancillary benefit of $5,000 toward professional fees. I held that this sufficiently responded to the applicant's request.

26At this point in time, I am not satisfied that Mr. Rudder has necessary and relevant evidence to provide. Mr. Rudder cannot speak to why he was hired instead of the applicant or was regarded as better qualified than the applicant. This evidence would need to come from the individuals who made the hiring decision. The respondents already have stated that Mr. Rudder was hired on September 6, 2011, and have indicated what the compensation package was for the positions to which the applicant applied or was interviewed. While Mr. Rudder could testify to confirm these facts, so can other witnesses that the respondents propose to call.

27If, during the course of the hearing, it turns out that Mr. Rudder's testimony becomes necessary and relevant on any material point, the applicant may renew his request for an order pursuant to Rule 1.7(k) at that time.

28I decline the applicant's request for an order requiring the respondents to provide an affidavit from Mr. Rudder for the same reasons.

29I also decline the applicant's request for an order requiring the respondents to send him the addresses and telephone numbers of the candidates hired instead of the applicant. I do not see any basis to grant this request.

Further requests for production of documents and particulars

30The applicant requests further disclosure of documents from the respondents, which I will address in the order they appear in the Request for Order.

31First, the applicant requests any documents, such as pay stubs, confirming the compensation package provided to candidates who were hired instead of him. This is a repeat of the request made and addressed in my previous Interim Decision, which I denied on the basis of the information provided by the respondents. I note that this information only becomes relevant in this proceeding if I find that the applicant's Code rights were violated by the respondents and that, had his rights not been violated, he would have been hired. At that point, this information would be relevant to the calculation of the applicant's damages for lost employment income. In my view, if we get to that point and if the compensation figures provided by the respondents remain in issue, then the applicant can renew his request for disclosure at that time.

32Second, the applicant requests particulars of the respondents' claim in their Amended Response that they complied with any duty in law to investigate the applicant's human rights allegations, and all documents evidencing the steps taken in the investigation and its outcome.

33In response, the respondents state that this information already has been provided through the documentary disclosure and witness statement process, and that the respondents have identified that they met in relation to the applicant's complaint and any documents have already been provided.

34I have reviewed, once again, the witness statements and documents filed by the respondents in an effort to discern what has been disclosed regarding what steps were taken in response to the applicant's complaint of discrimination. As far as I can tell, the only place where this is addressed is in the witness statement of Mr. Ferro, in which he states that he "had been in contact with Ms. Helden and Ms. Pushka once [the applicant] has raised concerns about not being hired" and that "it was determined that [the applicant] was treated fairly". However, the very next paragraph states that the applicant's concerns were discussed and for that reason he was offered an interview for a position which might be suitable for him because of his nursing background. This suggests that the communications between Mr. Ferro, Ms. Helden and Ms. Pushka regarding the applicant took place in response to the applicant's request for feedback in April 2011 following his initial round of interviews, and prior to his interview with Ms. Helden on June 15, 2011. It does not provide a response as to what, if any, steps were taken by the respondents in response to the applicant's complaint of discrimination and request that the respondents investigate his complaint by two e-mails sent on September 15, 2011, apart from the e-mails sent by Mr. Ferro to the applicant in response.

35Clearly, what if any steps were taken in response to the applicant's complaint of discrimination are arguably relevant to the applicant's claim that the respondents had a duty to take reasonable steps in response to his complaint and failed to comply with that duty, and so violated the Code. Accordingly, I am ordering the respondents to provide particulars regarding any steps taken in response to his complaint of discrimination and request for an investigation on September 15, 2011, and any documents apart from the e-mail responses from Mr. Ferro relating to any such steps.

36Third, the applicant requests disclosure of the following:

a. All records of training on cultural sensitivity and/or cultural competence attended by staff and management of the respondent law firm who dealt with the applicant during the recruitment process;

b. Information regarding the training provided to the respondent law firm's employees on how to deal with handling complaints from potential employees or job applicants and interviewees who subsequently allege that they were subject to enhanced questioning or scrutiny at interviews and/or discrimination; and,

c. Information regarding the training on human rights and/or sensitivity training provided to the respondent law firm's employees who deal directly with job candidates or interviewees.

37The respondents object to disclosure of these documents and information on the basis that they are ambiguous, overly broad and go beyond the scope of the allegations in the Application.

38I disagree. These requests are focused on employees at the respondent law firm who either dealt directly with the applicant or other job candidates or interviewees, in relation to requests (a) and (c) above. With regard to request (b), I agree that the request is overly broad. However, based on the response filed by the respondents, it appears that only Mr. Ferro, Ms. Helden and Ms. Pushka may have been involved in responding to the applicant's complaint, and so I am prepared to restrict this request to those three individuals.

39With regard to requests (a) and (c), it is arguably relevant to know what cultural sensitivity, cultural competence or human rights training was provided to the persons involved in interviewing the applicant and other candidates during the period of time at issue in this proceeding. Accordingly, I order the respondents to provide this information and any documents in their possession relating to any such training.

40With regard to request (b), as stated in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30, the factors to be considered in assessing whether a respondent took appropriate steps in response to a complaint of harassment or discrimination include the training provided to management and employees. In my view, this includes any training relating to how to respond to complaints of discrimination that may be raised by potential employees or job candidates such as the applicant. Accordingly, I order the respondents to provide the applicant with information regarding any such training as may have been taken by Mr. Ferro, Ms. Helden or Ms. Pushka and any documents in their possession relating to any such training.

41Fourth, the applicant takes the position that the respondents have failed to fully comply with the order made in my Interim Decision dated November 28, 2013 in a number of respects. The applicant first alleges that the respondents have failed to comply with paras. 67(vi) and (vii) which state that the respondents were to disclose:

vi. unredacted copies of all interview notes for all candidates considered for the roles for which the applicant was interviewed or invited for an interview, or clarification by the respondents that no such documents exist for any candidates interviewed for these positions, apart from the February 16, 2011 notes;

vii. unredacted copies of all interview notes pertaining to the job interviews of all other candidates for the role for which the applicant was invited to an interview on August 11, 2011, including but not limited to the minutes from the following: an interview with an identified person on July 20, 2011, who was hired as a lawyer; an interview with an identified person on July 22, 2011 who was not hired; and the group interview minutes from February 16, 2011. If nothing further exists, the respondents shall confirm that no such documents exist, apart from the aforementioned minutes

42In a letter to the applicant from counsel for the respondents dated December 11, 2013, the respondents disclosed minutes from interviews on February 16, 2011 and July 20 and 22, 2011, and expressly stated "no other documents exist". In my view, this fully complies with my order.

43The applicant next alleges that the respondents are in breach of para. 67(x) of my order, which required the respondents to disclose:

x. a list of all candidates interviewed in proximity to the applicant's interviews in February and June 2011 or invited to interview in August 2011, with the dates on which each candidate was invited for an interview and when the interview took place, and setting out who conducted the interviews. The names of hired candidates are to be shown on this list and the non-hired candidates are to be identified by distinct letter or number that should correspond to the letter or number shown in place of any such candidates' names on any redacted documents.

44In the December 11, 2013 correspondence, the respondents did in fact provide such a list. However, the applicant's point is that this list does not show any candidates interviewed in August 2011, in proximity to the period when he was invited to an interview on August 11, 2011. I note that in Ms. Pushka's witness statement, she states that in August 2011, the law firm was growing again and looking for litigation lawyers, and decided to give the applicant another chance to compete for a position at that time. The applicant was told that there was an "opening for an interview" on August 11, 2011. The applicant was out of the country at that time and did not respond until August 14, 2011, when he stated that he would not be back in Canada until August 17, 2011. Ms. Pushka states that since the applicant could not attend the opening she had for an interview, a decision was made to hire Sean Oostdyk on August 15, 2011 and Mr. Rudder was subsequently hired on September 6, 2011. The December 11, 2013 letter indicates that Mr. Oostdyk was interviewed on or about July 19, 2011 and Mr. Rudder on July 13 and again on or about July 21, 2011. As previously stated, the December 11, 2013 does not show any candidates being interviewed in August 2011, which raises the question as to what Ms. Pushka means by there being an "opening for an interview" on August 11, 2011.

45Accordingly, I am granting the applicant's request to the extent that I would like the respondents to provide specific confirmation that no candidates were interviewed in August 2011 in relation to the positions for which the applicant applied or was being considered. If any such interviews were undertaken, then my November 28, 2013 order requires the respondents to provide the information set out in para. 67(x) as quoted above.

46Finally, the applicant alleges that the respondents have not complied with para. 67(viii) of my order, by the which the respondents were ordered to disclose:

viii. a list setting out the names and ages of the candidates who were hired into the positions for which the applicant interviewed in February and June 2011 and was invited to interview in August 2011

47In the December 11, 2013 letter, the respondents state that they do not collect date of birth information for applicants or employees. The applicant questions this response on the basis that Ms. Helden in her witness statement makes reference to an "older lawyer" who had difficulty with the firm's computer systems. I note that she also states that the firm has hired "older lawyers" in the past. On this basis, the applicant renews his request for the ages of the candidates who were hired as ordered by para. 67(viii) as well as the age of the "older lawyer" referenced by Ms. Helden in her witness statement.

48In my view, the mere fact that a witness identifies an individual as being "older" does not mean that the witness has specific knowledge of the person's age. The respondents already have indicated that they do not collect date of birth information for applicants or employees. I take that to mean that the respondents are not in possession of the information required to respond to para. 67(viii) of my order. I do not take that to mean that a witness is unable to speculate as to whether a particular individual is "younger" or "older", for what any such evidence may be worth. I see no basis from what is contained in Ms. Helden's witness statement to indicate that the respondents have failed to comply with my para. 67(viii) of my order.

49Fifth, the applicant seeks disclosure of certain documents and information on the basis of the witness statement filed for Ms. Helden. In her witness statement, Ms. Helden references the minutes of the February 9, 2011 group interview and states that these minutes show how she gave feedback to the candidates and specific feedback to the applicant (I note that the minutes themselves are dated February 16, 2011, although the e-mail correspondence suggests an interview date of February 9, 2011). The applicant requests that Ms. Helden be required to identify what part of the minutes she is referring to, as this is not clear from the document. In my view, this issue can be appropriately addressed in cross-examination of Ms. Helden at the hearing.

50The applicant also refers to a statement made by Ms. Helden regarding the quality of his work in a memo prepared by the applicant in the context of the recruitment process, and the applicant requests further information from Ms. Helden to support her views. Once again, in my view, this issue can appropriately be addressed in cross-examination of Ms. Helden at the hearing.

51The applicant next references Ms. Helden's statement that she was only involved in two interviews with the applicant and did not engage in any further parts of the interview process. The applicant requests the names of all persons who were supposed to attend the interview that was to be scheduled with the applicant on August 11, 2011. In the e-mail from Ms. Pushka dated August 10, 2011, it is stated that the interview will be with "senior staff and a few associates". As this interview did not happen due to the applicant being out of the country, it is not clear to me how the names of the individuals who would have interviewed him had he been able to attend the interview are arguably relevant to an issue in this proceeding. This request is denied.

52Sixth, the applicant requests certain documents and information in relation to statements made in Ms. Pushka's witness statement. The applicant makes reference to Ms. Pushka's statement where she states that she made notes of the second group interview on February 16, 2011. I note that later in her statement, Ms. Pushka refers to "the notes that [she] took on February 16, 2011". If these are the minutes of a group interview conducted on February 9, 2011, the applicant requests any documents upon which Ms. Pushka relied to prepare the minutes seven days later or information about what aids she used to refresh her memory in order to prepare these minutes.

53I will confess that I am confused by the documents and witness statements. It appears from the e-mail correspondence that a group interview was re-scheduled from February 2 to February 9, 2011 due to a snow storm. However, the minutes of the group interview appear to me to have been prepared as if the interview took place on February 16, 2011. In this regard, I note that the Application does not refer to any group interview having taken place on February 9, 2011, but instead states (at para. 24) that sometime in or around February 14, 2011, the applicant received a telephone call from Ms. Pushka inviting him for a second interview to take place at 11 a.m. the next day. It is clear from who the applicant identifies in the Application as having been in attendance for this interview that the applicant is referring to the group interview as recorded in the minutes dated February 16, 2011. Which raises the question as to the precise date when this interview in fact occurred: was it on February 9, 2011 as appears from the e-mail correspondence? Or was it on February 16, 2011 as suggested by the minutes? Or was it on February 15, 2011 as suggested in the Application?

54In my view, it is appropriate for the respondents to provide clarification on what should be a relatively simple point. Five individuals from the respondent law firm attended this group interview, including Ms. Helden and Ms. Pushka. It seems to me that the calendar of one or more of these individuals should be capable of confirming when this group interview in fact took place. Accordingly, I order the respondents to provide this clarification as to the precise date on which the group interview involving the applicant took place and the basis upon which the respondents reach this conclusion. Further, if Ms. Pushka relied on any notes taken at the group interview or relied on any other documentary aids in order to prepare the minutes as they appear in the documents filed with the Tribunal, any such notes would be arguably relevant to this proceeding and need to be disclosed.

55The applicant also requests information regarding the date on which Ms. Pushka made her notes of interviews she attended for each of the other candidates. As far as I can tell, apart from the minutes of the group interview dated February 16, 2011, the only other interview notes in the respondents' possession are notes of interviews conducted on July 20 and 22, 2011. These minutes are both dated on the same date as the interview was conducted, as is apparent from the December 11, 2013 letter. In my view, the respondents already have responded to this request.

56The applicant next requests documents or information relating to the dates or approximate dates when Mr. Oostdyk, Mr. Rudder and Mr. Tischler were informed of the decision concerning interviews held in August 2011. To be frank, I do not understand the basis for this request. As noted above, the information provided by the respondents in response to my order does not indicate that any candidates were interviewed in August 2011 (although the respondents state that they have no records regarding the date on which Mr. Tischler was interviewed). The respondents already have stated that Mr. Rudder was interviewed on July 13 and 21, 2011 and Mr. Oostdyk was interviewed on July 19, 2011, and that Mr. Oosdyk was hired on August 15, 2011 and Mr. Rudder on September 6, 2011. In my view, this information already sufficiently responds to the applicant's request.

57The applicant finally notes that the respondents state that they have no records regarding when Mr. Tischler was contacted to set up an interview, when he was interviewed or who attended the interview. The applicant accordingly requests information regarding the approximate dates for which the respondents state that no records exist and the names of the persons attending the interview. This information already was ordered in my previous order, and the respondents were unable to respond as they say that no records exist that would enable them to respond. I do note that the respondents have indicated that Mr. Tischler was hired, and they should at least have a record of when he commenced his employment with the respondent law firm. I am prepared to order the respondents at least to provide that information.

58Seventh, the applicant seeks certain orders arising out of the witness statement filed for Mr. Ferro. The applicant first refers to a statement by Mr. Ferro that he has worked with lawyers between the ages of 28 and 55, as the basis for making a request for the ages of lawyers working at the firm. The issue raised in this proceeding is whether the applicant experienced age discrimination, among other things, in relation to his interest in working for the respondent law firm and the recruitment process. He already has requested the ages of the other candidates who were considered, which I granted and to which the respondents replied that they do not have information about the candidates' dates of birth. As stated above, a general statement about the ages with whom one has worked does not mean that the respondents are able to supply the precise age of the candidates considered. Nor is it relevant for the applicant to know the ages of all lawyers working at the firm. This request is denied.

59The applicant next references a statement made by Mr. Ferro regarding a discussion he says that he had with Ms. Helden and Ms. Pushka about the applicant's concerns about not being hired and a determination that the applicant was treated fairly, as the basis for requesting disclosure regarding documents relating to any investigation that was conducted and the steps taken to address the applicant's concerns. This request already has been addressed above.

60The applicant finally references a statement made by Mr. Ferro that the respondents attempted to create a position for the applicant but found he was not suitable for that position, as a basis to request disclosure of any documents regarding the position created for the applicant, including the duties of the position, the wages and perks for the position, the firm's need for the position, and the reason the position was never filled or advertised for. Mr. Ferro's statement is clearly referring to the role for which the applicant was interviewed on June 15, 2011. If there are any documents relating to this role, they are clearly arguably relevant to an issue in this proceeding and I expect already have been disclosed by the respondents to the extent they exist. If my expectation is not correct, then any such documents in the respondents' possession need to be disclosed.

61I note that in the respondents' response to the applicant's request, the respondents have confirmed that they had an idea for potentially using the applicant as a uniquely trained nurse / lawyer in accessing benefits for persons under the Statutory Benefits Act Schedule, but that this position was never created as the applicant was determined not to show knowledge beyond that of a legally trained only candidate. The respondents also have confirmed that the specific duties, wages etc. for the position were never created as it never went beyond the "idea" stage, and that the position was never filled, advertised or interviewed for, for the same reasons. In my view, this sufficiently responds to the applicant's requests for information on this point.

62Eighth, in e-mail correspondence filed with the Tribunal on January 27 and 29, 2015 subsequent to his initial Request for Order, the applicant makes certain additional requests. First, he refers to para. 67(ix) of my previous order, which required the respondents to produce "e-mails or letters and other documentation showing the dates all other candidates were invited for interview as well as the dates on which those interviews took place, with names of non-hired candidates redacted". The applicant submits that the respondents have failed to comply with this aspect of my order, on the basis that the respondents have failed to disclose any e-mails or cover letters for the candidates who participated in the group interview with the applicant in February 2011. In this regard, I note that the chart provided by the respondents in their December 11, 2013 letter does not include reference to the two other candidates interviewed with applicant in February 2011. If the respondents do have in their possession any documents relating to these other two candidates, then this would fall within the scope of para. 67(ix) and (x) of my order and needs to be produced.

63The applicant next requests written assignments for four candidates who were hired or for the two other candidates who attended the group interview with the applicant in February 2011. At para. 67(xi) of my order, I ordered the respondents to disclose "any writing assignments received from successful candidates, including any marked-up copies of these assignments, and any marked-up copy of the applicant's SABS memo". With the December 11, 2013 letter, the respondents provided written assignments for two of the successful candidates, but not for the other four candidates shown as having been hired by the firm in the relevant period. If the respondents are in possession of writing assignments prepared by these other four successful candidates, then these would fall within the scope of my previous order and need to be disclosed. With regard to the two individuals who attended the group interview with the applicant in February 2011, my understanding is that they were not hired by the respondent law firm and so would not fall within the scope of my order.

64The applicant next requests a clear, coloured copy of the respondent law firm's internal "organizational structure" and "team organizational" charts, which I ordered disclosed pursuant to para. 67(xii) of my previous order. This request is granted.

65Finally, the applicant requests an order preventing the respondents from relying upon or adducing into evidence any internal documents on problem-solving methods or the nine stages of a file, on the basis of my November 28, 2013 Interim Decision. The reason for this request is that Ms. Helden, in her witness statement, has indicated that she intends to present, as part of her evidence, a slide presentation that is routinely given to interview candidates at the law firm. This slide presentation has been produced by the respondents as part of the documents upon which they intend to rely at the hearing, in Volume III at Tab Q. The slide presentation includes a general diagram of the "nine stages of a file" as well as, an overview of the "problem solving process".

66The applicant contends that I should prevent the respondents from adducing such evidence on the basis that I declined to require the respondents to disclose the law firm's internal documents relating to these matters, on the basis that there was no indication that candidates were expected to have familiarity or experience with these specific internal law firm documents. That is different than the relevance of a slide presentation that specifically is given by the firm to interviewees, in order to inform them of the general nature and practices of the firm and assess their interest in continuing in the recruitment process. In my view, there is no basis to deny the respondents from adducing evidence regarding information provided to candidates during the recruitment process, including the slide presentation. At the same time, this does not make the law firm's more detailed internal documents any more relevant to the issues that need to be determined in this proceeding. Accordingly, this request is denied.

Next Steps

67The Tribunal will now proceed to schedule dates for the hearing in this matter. In accordance with the Tribunal's current practice, the maximum number of days that will be scheduled for the parties' initial appearance is three days. As a result, the Tribunal will canvass the parties with a view to scheduling the initial three days for the hearing. If Mr. Ferro continues to require any accommodation relating to his participation in the hearing, the respondents shall provide medical documentation indicating what specific accommodations he requires.

68I also am concerned about the continued making of interlocutory requests in this matter. At this stage, this proceeding already had been scheduled to proceed to a hearing in March 2014, and the parties have filed the documents upon which they intend to rely and their witness statements. I appreciate that the applicant intends to provide a revised witness statement for his own evidence, and also may be disclosing arguably relevant documents that have come into his possession or come to his knowledge since that time. But if there are any further interlocutory requests based on the information disclosed and filed to date, any such requests shall be made within 30 calendar days of the date of this Interim Decision and will not be entertained thereafter.

ORDER

69For the foregoing reasons, I hereby make the following order:

a. The applicant's request to amend his Application to raise post-Application reprisal allegations is granted. The applicant shall serve and file his amendments within 14 calendar days of the date of this Interim Decision in the form specified in para. 15 above. The respondents shall have 35 calendar days to serve and file their Response from the date on which they are served with the applicant's amendments. The response to the amendments shall be in the form of a document entitled "Schedule B to the Amended Response". The applicant shall have 14 calendar days from the date he is served with the respondents' response to his amendments to file any reply, which shall be in the form of a "Schedule A to the Applicant's Amended Reply";

b. The applicant's request to amend his claim for compensation is granted, and his amended claim for compensation shall be included as part of Appendix II to his Application to be filed in accordance with the directions provided above;

c. The respondents shall disclose the following documents and/or information to the applicant at the time they file their Schedule B to the Amended Response:

i. particulars regarding any steps taken in response to his complaint of discrimination and request for an investigation on September 15, 2011, and any documents apart from the e-mail responses from Mr. Ferro relating to any such steps,

ii. information regarding any cultural sensitivity, cultural competence or human rights training provided to the persons involved in interviewing the applicant and other candidates during the period of time at issue in this proceeding, and any documents relating to any such training,

iii. information regarding any training taken by Mr. Ferro, Ms. Helden or Ms. Pushka relating to how to respond to complaints of discrimination and any documents in their possession relating to any such training,

iv. specific confirmation that no candidates were interviewed in August 2011 in relation to the positions for which the applicant applied or was being considered. If any such interviews were undertaken, then my November 28, 2013 order requires the respondents to provide the information set out in para. 67(x) of that order,

v. clarification as to the precise date on which the group interview in February 2011 involving the applicant took place and the basis upon which the respondents reach this conclusion. Further, if Ms. Pushka relied on any notes taken at the group interview or relied on any other documentary aids in order to prepare the minutes as they appear in the documents filed with the Tribunal, any such notes or documents shall be disclosed,

vi. information regarding when Mr. Tischler commenced his employment with the respondent law firm,

vii. any documents relating to the role for which the applicant was considered in June 2011, or confirmation that any such documents do not exist or already have been disclosed,

viii. e-mails or letters and other documentation showing the dates when the two candidates who attended the February 2011 group interview with the applicant were invited for interview as well as the dates on which those interviews took place,

ix. disclosure of any writing assignments prepared by the successful candidates shown in the December 11, 2013 letter other than Mr. Oostdyk and Mr. Rudder if these documents exist and are in the respondents' possession, or confirmation that they do not exist or are not in the respondents' possession,

x. a clear, coloured copy of the respondent law firm's internal "organizational structure" and "team organizational" charts;

d. All other requests made by the applicant are denied; and,

e. Any further interlocutory requests based on the information disclosed and filed to date shall be made within 30 calendar days of the date of this Interim Decision and will not be entertained thereafter.