Ivan Escudero v. Ice Dreams Skating Academy, 2015 HRTO 482

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ivan Escudero Applicant

-and-

Ice Dreams Skating Academy Respondent

INTERIM DECISION

Adjudicator: Eli Fellman Date: April 15, 2015 Citation: 2015 HRTO 482 Indexed as: Escudero v. Ice Dreams Skating Academy

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 in employment on the basis of creed. The applicant alleges that the owner of the corporate respondent (the owner), verbally abused, intimidated and threatened him based on his Catholic religious beliefs when he failed to report to work for a scheduled shift on a Sunday. The applicant subsequently quit his employment with the respondent.

2A hearing in respect of this Application is scheduled for April 22-23, 2015 in Toronto.

3This Interim Decision primarily addresses the applicant's five Requests for an Order During Proceedings ("RFOP") (Form 10) filed between March 30 and March 31, 2015. It also addresses several other issues relating to evidence that may be provided during the hearing.

FORM 10s

4The Form 10s are summarized below and are numbered to be consistent with the numbering assigned by the applicant. The applicant did not submit a document identified as "Form 10-2".

a) Form 10-1 – a list of all students who attended Ice Dreams Skating Academy while the applicant was employed there. The applicant indicates that the students may have seen the alleged abusive conduct in question and may be called as witnesses.

b) Form 10-3 – complete payroll records for all coaches who worked at Ice Dreams Skating Academy while the applicant was employed there. The applicant indicates that these records are required to support his position that his wages were retained by the respondent as punishment.

c) Form 10-4 – a complete list of the names of other employees of the Pavilion, which is the arena where the corporate respondent conducts some of its activities. The applicant indicates that this list is required to support his position that the owner was abusive towards him.

d) Form 10-5 – requests the same documents as Form 10-3.

e) Form 10-6 – a list of all coaches who worked for Ice Dreams Skating Academy for the last two years and have been dismissed or resigned on their own. The applicant indicates that this list is required because the owner has stated that she has never been abusive towards any of her employees.

5The respondent submitted a detailed Response to a Request for an Order (Form 11) on April 8, 2015. The applicant provided a further submission later that same day addressing some of the issues identified in the Form 11.

6For the reasons set out below, I find that the five Form 10s submitted by the applicant should be dismissed.

7On July 6, 2014, the Tribunal issued a Notice of Hearing for this Application. The Notice of Hearing states, in part:

By August 6, 2014, you must send the other parties a copy of all documents you have in your possession that may be relevant to the issues raised in the case, except documents that are privileged... By March 9, 2014, each party must prepare:

1. a list of the documents you intend to rely on at the hearing. These are the documents that you have chosen to put before the tribunal from among the documents disclosed at step one by both parties.

2. copies of each of these documents for the HRTO.

3. a witness statement setting out the intended evidence of each witness.

8The deadlines for disclosure of documents and witness statements contained in the Notice of Hearing are consistent with the Tribunal Rules of Procedure 16 and 17.

9Rule 16.4 provides as follows with respect to documentary evidence:

No party may rely on or present any document not included on a document list and provided to other parties in accordance with Rule 16.1 and 16.2, and filed with the Tribunal under Rule 16.3, except with the permission of the Tribunal.

10Rule 17.4 provides as follows with respect to witnesses:

No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

11The Form 10s are intended to be a means for the applicant to obtain the names of possible additional witnesses who may be called during the hearing and additional documents that may be submitted into evidence during the hearing.

12The deadline for the submission of documentary evidence and witness statements was over a month ago. The hearing is now less than three weeks away. Granting the applicant's production requests in order to allow him to submit additional documentary evidence and call additional witnesses at this late date would be an abuse of the Tribunal's process as set out in the Rules of Procedure.

13The applicant has not provided a satisfactory explanation for failing to file the Form 10s in a timely manner. This Application was filed on October 29, 2013. In her April 8, 2015 submission, the applicant's representative explains that the Form 10s were only recently filed because she found out about a month and a half ago that the respondent was being represented by legal counsel. However, the applicant could have filed the Form 10s at any point while the respondent was self-represented.

14Further, even if the Form 10s had been filed in a timely manner I would not have been inclined to order disclosure of the requested documents or lists. The information requested in Form 10-1 is overly broad and not relevant to the issues before the Tribunal. The release of the requested information may violate the privacy interests of the named students. In addition, to the extent that some or all of the students are children, it is questionable whether they would be capable of testifying in a Tribunal hearing. The information requested in Form 10-3 and 10-6 is not arguably relevant to the applicant's claim that the owner was abusive towards him due to his Catholic faith. The information requested in Form 10-4 is not in the respondent's possession based on the respondent's submission that it merely rents ice time at the Pavilion rink which is operated by a separate legal entity.

15It appears to me that the respondent has already satisfied its obligation to disclose arguably relevant documents in its possession. If the applicant believes that the respondent has failed to disclose all arguably relevant documents he can pursue this issue during cross-examination of the owner.

OTHER ISSUES

Letter from pastor

16The applicant indicates in an email to the Tribunal dated March 26, 2015 that he intends to present a letter from his Catholic pastor confirming his close involvement with St. David's Parish. It does not appear that the applicant has filed this letter or provided a copy to the respondent as of yet. In its April 8, 2015 submission, the respondent objects to this proposed evidence on the grounds that it is not arguably relevant and was not disclosed by the August 6, 2014 deadline.

17The applicant has not explained why he was unable to disclose this letter by the August 6, 2014 deadline for disclosure. However, the issue of the applicant's inability to work on Sundays due to his religious devotion is at issue in this proceeding, meaning a letter from his pastor may be relevant. Therefore, the applicant has until noon (12 p.m.) on April 20, 2015 to file any such letter with the Tribunal and provide a copy to the respondent. If after reviewing the letter the respondent believes that its admission after the deadline for disclosure causes actual prejudice, this matter can be addressed at the hearing prior to the admission of the applicant's evidence.

18The applicant is advised that while letters such as the one described can be accepted into evidence by the Tribunal, they are given less weight and are considered to be of lesser value than evidence provided by a live witness subject to cross-examination.

Applicant's witness statement

19The respondent notes in its April 8, 2015 submission that the applicant had not submitted a witness statement. The applicant subsequently confirmed that he would be testifying about the facts contained in the initial Application filed with the Tribunal.

20The Application is sufficiently detailed to substitute for a witness statement. The Tribunal will permit the applicant to testify at the hearing, but his testimony will be confined to the issues raised in the Application.

Applicant's response to respondent's Form 10

21In addition to the 5 Form 10s, the applicant submitted a document on March 26, 2015 entitled "Schedule 'B' Response to Respondent's Schedule 'A'". I understand this document to be a response to a Form 10 filed by the respondent on March 5, 2015. This Form 10 asks the applicant to identify which of the seven other skating coaches who were present at the arena on September 24, 2013 overheard the allegedly discriminatory statements directed at the applicant.

22The applicant's response to the Form 10 was submitted seven days after the specified deadline and is not on the prescribed form. However, I do not find that consideration of this pleading will result in any prejudice towards the respondent in the circumstances.

23I understand the applicant's response to be that he is not certain who overheard the allegedly discriminatory statements made by the owner, but he would like each of the seven other coaches present at the arena on September 24, 2013 to provide testimony at the hearing.

24The applicant has not summonsed or filed witness statements for anyone who was present at the arena on September 24, 2013 when the allegedly discriminatory statements were made. The names of the seven other coaches who were at the arena on that date were disclosed by the respondent in its Response (Form 2) which was filed on December 11, 2013. As discussed above, the deadline for filing witness statements was March 7, 2015. The applicant has not explained why he could not submit witness statements for some or all of the seven coaches by the deadline. The Tribunal will not permit a witness to testify in the absence of a witness statement filed by the applicable deadline.

25The respondent also asserts that paragraphs 1, 2 and 4 of the applicant's response to the Form 10 should be removed because they contain new and untimely allegations that are not set out in the Application.

26I do not find that the paragraphs 1, 2 and 4 of the applicant's response to the Form 10 contain new allegations. Paragraph 1 is a response to the claim made in the respondent's Form 10 that the applicant was a subcontractor as opposed to an employee of the respondent. Paragraph 3 is consistent with the allegations made in the Application respecting conduct towards him. Paragraph 4 provides some further details about what allegedly happened on September 24, 2013. It is clear from the Application that this incident is central to the applicant's case.

Further requests for production

27I will review any further requests for production of documents, particulars or additional witnesses made by either party. If I believe that a response to such a request is required in advance of the hearing, I will provide further written directions.