Crawford v. Imperial Oil, 2015 HRTO 1103

Human Rights Tribunal of Ontario

Between:

Sandi Marie Crawford Applicant

-and-

Imperial Oil Respondent

Interim Decision

Adjudicator: Jennifer Scott Date: August 18, 2015 Citation: 2015 HRTO 1103 Indexed as: Crawford v. Imperial Oil

Appearances

Sandi Marie Crawford, Applicant Self-represented

Imperial Oil, Respondent Richard Nixon, Counsel

Introduction

1This Application alleges discrimination with respect to services because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In particular, the applicant alleges that she and her husband were treated differently at a gas station because of their race. The Application is scheduled for a hearing on October 5, 2015, in Toronto.

2A case management conference call took place on August 7, 2015. The purpose of the call was to hear the parties' submissions on interim requests that they had filed, summarized below:

a. The applicant's request to add her spouse George Crawford as an applicant and Cindy Martin Management Inc. as a respondent.

b. The applicant's request for production of a videotape and any documents concerning the termination of the gas attendant Jason Crawford.

c. The respondent's request for the production of the applicant's employment and health records for the period June 24, 2012 to June 24, 2014.

3Orders were given during the case management conference call regarding the applicant's request for production of the videotape and the respondent's request for production of the applicant's employment and health records. These documents were ordered produced by August 21, 2015.

Adding Parties

George Crawford as an Applicant

4This Application was filed on June 24, 2014. The incident that is the subject of the Application took place on June 24, 2013. On the day the Application was filed, the applicant brought a Request for Order During Proceedings seeking an order to add her spouse, George Crawford, as a party. Although this Request should have been dealt with by the Tribunal in a timely way, it was not addressed until the case management conference call on August 7, 2015.

5The respondent objects to adding George Crawford as a party. It submits there was no consent by George Crawford allowing the applicant to file an application on his behalf. It submits further that it is too late in the proceeding to add him and that if he was added, the respondent would have to file a Response. Finally, the respondent submits that to allow George Crawford to be added as an applicant would permit him to circumvent the limitation period in the Code.

6The applicant submits that the Application was filed on behalf of herself and George Crawford. She states that they wrote the Application together and that their experience of discrimination was the same. The applicant has advised that George Crawford's Application is identical to the one that she has filed.

7In light of the applicant's submission that George Crawford's Application is identical to hers, I have decided to accept this Application as George Crawford's Application. There is no point in having George Crawford file the same Application as the one before me. Although I have decided to treat this Application as an Application on behalf of George Crawford, George Crawford's Application is untimely. This raises the question of whether the delay in filing the Application by George Crawford was incurred in good faith and whether there is any prejudice to the respondent in accepting this Application. Submissions are required on these issues. Deadlines for these submissions are set out below.

Cindy Martin Management Inc. as a Respondent

8The applicant, in a Request for Order During Proceedings dated June 30, 2015, requests an order adding Cindy Martin Management Inc. as a respondent. The respondent objects to this request. It states that it does not speak for Cindy Martin Management Inc. It submits that Cindy Martin Management Inc. should be given an opportunity to respond to the applicant's request to add it as a respondent and to provide a Response to the Application, if added. The respondent states that to add Cindy Martin Management Inc. as a respondent at this time would result in an adjournment of the hearing on October 5, 2015.

9In my view, it is too late in the process to add Cindy Martin Management Inc. as a respondent. I agree with the respondent that if Cindy Martin Management Inc. was added as a respondent at this late date, it would result in an adjournment of the hearing scheduled for October 5, 2015 because Cindy Martin Management Inc. has not had an opportunity to respond to the Application.

10During the case management call, there was a discussion as to whether the respondent is liable for the actions of its agent, Cindy Martin Management Inc. I will require submissions from the parties on this issue at the hearing, including the applicability of section 46.3 of the Code.

Production Requests

11The basic principle in determining a production request is whether the requested documents are "arguably relevant". The party requesting production has the burden of demonstrating that the documents sought are "arguably relevant" to the issues in dispute in the proceeding before the Tribunal.

Requests from the Applicant

12The applicant requests production of a videotape that recorded all or part of the incident that is the subject of this Application. The respondent agrees the videotape is relevant and is willing to disclose it to the applicant and the Tribunal, but requests an order of the Tribunal to do so.

13The videotape is arguably relevant to the issues in the proceeding and must be produced by the respondent.

14The applicant also requests any documents relating to the termination of Jason Crawford (no relation to the applicant), the gas attendant who is alleged to have refused services. The applicant asserts that Mr. Crawford was terminated for his conduct.

15The respondent objects to producing these documents. The respondent asserts that it had no employment relationship with Mr. Crawford and any documents relating to his termination belong to its agent Cindy Martin Management Inc., not the respondent.

16The termination records, if they exist, are arguably relevant to the issues in this proceeding.

17The relationship between the respondent and Cindy Martin Management Inc. is described in the Response. The respondent owned the gas station where the events set out in the Application took place. Cindy Martin Management Inc. operated the gas station, as agent for the respondent.

18As Cindy Martin Management Inc. is the agent for the respondent in relation to the operation of the gas station, the respondent has the ability to request the termination documents from Cindy Martin Management Inc. The fact that the respondent is in possession of the videotape, which in all likelihood was obtained by Cindy Martin Management Inc., supports this conclusion. If I am wrong in this finding, the Tribunal has the authority to compel production of documents from third parties pursuant to Rule 1.7(p) of the Tribunal's Rules of Procedure and I order production on this basis.

Requests from the Respondent

19The respondent has requested production of the applicant's employment and health records for the period June 24, 2012 to June 24, 2014. In the Application, the applicant requests monetary compensation from the respondent in the amount of $30,000.00 for the pain and suffering experienced by the applicant and her spouse for the time off work. In the Application, the applicant states:

My husband and I are now suffering, poor mental and physical health ever since this traumatic discrimination event. We are suffering high chronic stress, emotional outburst and inner turmoil, anxiety, depression, low self worth, not socializing as much. Difficulty sleeping all this leading to eating disorders, headaches, and loss of time from work, lost wages.

20The applicant has claimed monetary compensation for the impact of the alleged discrimination on her employment and health. If the applicant intends to pursue this claim at the hearing, she must produce records to substantiate this claim. In other words, the applicant must produce documents that link the discrimination alleged in the Application with employment loss and health impacts.

21The Application was filed on June 24, 2014. The incident occurred on June 24, 2013. The period of time for disclosure requested by the respondent is reasonable. As such, if the applicant is seeking compensation for lost employment and any impact on her health, she must produce her health and employment records for the period June 24, 2012 to June 24, 2014. If the applicant decides not to seek compensation on this basis, and wishes to limit her claim for compensation for general damages, these records do not need to be produced.

Order

22The Tribunal makes the following orders:

a. By August 21, 2015, the respondent must produce the videotape to the applicant and the Tribunal.

b. By August 25, 2015, the respondent must produce all documents relating to the termination of Jason Crawford, including any investigation into the incident that is the subject of this Application.

c. By August 21, 2015, the applicant must produce her employment and health records, if she is seeking compensation for any impact on her employment and/or health, for the period June 24, 2012 to June 24, 2014.

d. By September 1, 2015, the parties must provide their submissions on whether the Tribunal can proceed with George Crawford's Application. These submissions should include the issue of whether George Crawford's delay was incurred in good faith and any prejudice to the respondent.