Robinson v. Ethical Solution Providers Inc., 2015 HRTO 1334

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Robinson

Applicant

-and-

Ethical Solution Providers Inc. and Cheryl Quinn

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: October 6, 2015 Citation: 2015 HRTO 1334 Indexed as: Robinson v. Ethical Solution Providers Inc.

WRITTEN SUBMISSIONS

David Robinson, Applicant Self-represented

Ethical Solution Providers Inc. and Cheryl Quinn, Respondents Gillian Howe, Counsel

1This is an Application dated July 31, 2014 alleging discrimination with respect to employment because of sex, place of origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The hearing in this matter is scheduled to proceed in Toronto on October 20, 2015.

3The purpose of this Interim Decision is to address the applicant's Request for Order dated September 14, 2015, seeking: production of certain documents and information; to exclude a witness sought to be called by the respondents; and an extension of time. The Response to the applicant's Request was filed by the respondents on September 30, 2015.

Request for production of documents and information

4The test for requiring production of documents and information is whether the documents and information sought are arguably relevant to an issue raised in the proceeding.

5In order the assess the arguable relevance of the requests for production of documents and information made by the applicant, I first need to consider the issues raised in this Application.

6The applicant alleges that he experienced discrimination in respect of employment because of sex on the following bases: that the personal respondent Ms. Quinn often remarked "boys have cooties, stay away from them"; that the applicant as a man was required to adhere to a dress code that required him to wear a tie, whereas women "dressed as they pleased"; that Ms. Quinn was always on "men in general" to do more work and badgering men to get back to work, while women were reading non-work related literature; that male employees were required to deliver paper and not women; and that his gender was a factor in the decision to terminate his employment.

7The applicant alleges discrimination in respect of employment because of place of origin on the basis that on St. Patrick's Day in 2014, he was told by Ms. Quinn to wear a green plastic bowler hat together with a rosette with a fake Irish name on it, which he refused to do. He alleges that he was told by Ms. Quinn that he was not a true Irish person if he didn't celebrate St. Patrick's Day. He states that other employees wore the hats and rosettes, which he found very insulting to Ireland and Irish people. He felt that this experience was mocking him as an Irish immigrant.

8The applicant alleges reprisal on the basis that prior to the termination of his employment on April 23, 2014, he had contacted Health and Safety. In this regard, I note that this Tribunal has no jurisdiction to enforce the reprisal provisions of the Occupational Health and Safety Act. This Tribunal's only jurisdiction over reprisal arises from s. 8 of the Code, which protects an individual from experiencing reprisal for claiming and enforcing her or his rights "under this Act", namely the Code. However, I note from the material before me that, in an e-mail to Ms. Quinn dated April 17, 2014, the applicant does make reference to an intention to contact the Human Rights Tribunal "for possible sexual discrimination if [he is] disciplined or fired".

9In his Request for Order, the applicant first requests the Human Resources file for a former co-worker (S.B.), including his last known contact details and any exchange of e-mails he sent alleging sexism or racism against Ms. Quinn. The applicant submits that these documents would establish a pattern which he contends proves his case. I disagree. The issue before me is whether the applicant experienced discrimination because of sex, not whether another male employee also believed that he too experienced discrimination because of sex. To the extent that S.B.'s evidence regarding his own personal experiences may be relevant to the applicant's allegations, such evidence would only be admissible in this proceeding as "similar fact" or "pattern" evidence. My concern about documents pertaining to S.B.'s own personal experiences is that his employment with the organization respondent was terminated in May 2012, approximately two years prior to the point at which the applicant's employment was terminated. As a result, while S.B.'s own personal experiences may speak to what was going on during a period of time that was over two years prior to the termination of the applicant's employment, S.B.'s own personal experiences would not be capable of speaking to what the applicant alleges occurred in the period of time more proximate to the termination of the applicant's own employment. Accordingly, in my view, the documents and information sought by the applicant in relation to S.B. are not arguably relevant to the issues raised by the applicant in this proceeding.

10The applicant next requests production of documents pertaining to a female co-worker, whom the applicant alleges was given a one-day suspension for smoking pot on the organization respondent's premises. He alleges that this demonstrates differential treatment because of gender. Once again, I disagree. The respondents' position is that the applicant was terminated for insubordination, due to his refusal to do paper deliveries, his refusal to comply with his supervisor's direction to prepare a list of what he understood to be his job duties, and his refusal to meet with management. This is an entirely different circumstance than an employee who is alleged to have smoked pot on the premises. In my view, this female co-worker's situation is not arguably relevant to the issues raised in this proceeding.

11The applicant finally requests documents relating to an alleged "fight" between one of the respondents' proposed witnesses, M.I., and another co-worker, and relating to M.I.'s promotion. As I understand it, these documents are sought for the purpose of undermining M.I.'s credibility. A challenge to a witness' credibility is generally conducted at a hearing through cross-examination, and questions asked during cross-examination can have a wider latitude than a strict application of the test of arguable relevance to an issue raised in the proceeding. However, the collateral evidence rule prevents the cross-examining party from introducing evidence to contradict a witness on a point that is not directly relevant to the issues to be determined. In my view, the requests for production made by the applicant in relation to M.I. fall afoul of the collateral evidence rule, as the documents sought have no direct relevance or even arguable relevance to the actual issues to be determined in this proceeding. Rather, the documents sought are entirely for the purpose of undermining M.I.'s credibility. On this basis, the applicant's request is denied.

Request to exclude M.I. as a witness

12In his Request, the applicant raises an objection to M.I. appearing as a witness to testify on the respondents' behalf based upon what the applicant alleges to be a "conflict of interest". In fact, the various items related by the applicant as forming the basis for this alleged conflict of interest are actually lines of questioning that he potentially could pursue in cross-examination and submissions he could make at the hearing regarding M.I.'s credibility as a witness or the weight to be given to her testimony. They do not provide a basis to support the exclusion of M.I. as a witness.

13Accordingly, the applicant's request for an order excluding M.I. from testifying as a witness in this proceeding is denied.

Request for extension of time

14The applicant has requested an extension of time for the purpose of filing any documents that the respondents are ordered to produce due to his Request, and in order for him to locate S.B. and determine whether to call him as a witness.

15As the applicant's requests for production of documents and information have been denied, there is no basis or reason to grant an extension of time.

ORDER

16The applicant's Request for Order is denied in its entirety.