HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adam Lebel
Applicant
-and-
Liquor Control Board of Ontario
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Lebel v. Liquor Control Board of Ontario
WRITTEN SUBMISSIONS
Adam Lebel, Applicant
Walter Hohman, Representative
Liquor Control Board of Ontario, Respondent
Justin Diggle, Counsel
1This Application alleges that the respondent failed to accommodate the applicant, one of its employees, with respect to the applicant’s childcare obligations, resulting in discrimination on the ground of family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.
2On the second day of the hearing, the parties made submissions with respect to the preliminary issues raised by the respondent in three Requests for an Order During Proceedings.
3At the conclusion of the oral submissions, the applicant requested permission to file written submissions. Just prior to the date on which his written submissions were due, he requested an extension. He failed to provide the written submissions by that date and when the Tribunal inquired, advised they would be submitted within two days. He failed to meet this deadline also.
4In a Case Assessment Direction, the applicant was directed to file his written submissions within seven days, failing which I would decide the preliminary issues based on the respondent’s original written submissions and the oral submissions of both parties. The applicant failed to provide the submissions. Following is my Interim Decision with respect to the preliminary issues based on the submissions before me.
RESPONDENT’S REQUESTS
5In a Form 10 Request for an Order During Proceedings (“RFOP”) filed on May 4, 2015, the respondent requests that the Tribunal:
a. strike certain parts of the Application including:
i. Paragraph 20 and
ii. References to other employees’ situations as set out in paragraphs 3, 8, 14, 22, 24, 29 and 41 of the applicant’s narrative in the Application [a version of the narrative with numbered paragraphs is attached to the Response at Schedule “C”]; and
b. order the applicant to produce his arguably relevant documents.
6In an RFOP filed on January 15, 2016, the respondent requests that the Tribunal:
a. strike paragraphs 4 and 5 of the amended Application;
b. strike the witness statements of Kevin Arthur, Tim Baker, Brett Price and Tricia Hancock;
c. not admit the documents at Tabs 17, 71, 74, 75 and 77 in the applicant’s Book of Documents; and
d. order the applicant to provide legible copies of the documents at Tabs 44 and 50 of his Book of Documents.
7In an RFOP filed on January 29, 2016, the respondent requests an order for disclosure of documents, more particularly set out below.
STRIKING PARAGRAPHS
8The respondent asks the Tribunal to strike paragraph 20 of the Application, which contains allegations concerning accommodations requested by other employees, the respondent’s responses and his view of the workplace culture/environment.
9The respondent also asks the Tribunal to strike references to other employees’ situations in paragraphs 3, 8, 14, 22, 24, and 41 of the Application; paragraphs 4, 5 and 32 of the Amended Application; and paragraph 3 of the Reply. The respondent did not make submissions with respect to paragraph 29.
10The respondent submits that this case is about whether the respondent discriminated against this applicant, and if so, whether or not the respondent satisfied its duty to accommodate him to the point of undue hardship. It is not about whether or not the respondent accommodated any other of its employees. References to other accommodation cases involving other employees are irrelevant because of different facts, historical legal landscape and management.
11The applicant did not provide written or oral submissions with respect to the request to strike paragraph 3, 8, 14, 20, 22, 24 or 41 the Application. The applicant agreed with the respondent’s submission that issues of systemic discrimination or “culture” are not part of this Application.
12The applicant did not make written or oral submissions with respect to paragraph 4 and 5 of the amended Application or paragraph 3 of the Reply. With respect to paragraph 32 of the amended Application, the applicant submits the information was included merely as a description of common practice when EAP is engaged, and not as an attempt to bring other employees’ cases into this one.
analysis and decision regarding striking paragraphs
13The undisputed issue in this case is whether or not the respondent discriminated against the applicant, and if so, whether the respondent satisfied its duty to accommodate the applicant to the point of undue hardship.
14Generally the impugned paragraphs of the Application and Reply and the applicant’s narrative in the Application refer to the situation of other employees, not the applicant. As such, these references are not relevant to the issue in this Application.
15Allowing the applicant to introduce evidence or allegations with respect to others’ complaints could result in the Tribunal addressing irrelevant and overly broad evidence at the hearing, which is not expeditious and will not assist the Tribunal in its task. See King v. Toronto Police Services Board, 2008 HRTO 328 at para. 10, and Ibrahim v. Hilton Toronto, 2014 HRTO 154 at para. 22. Given the differences between other employees’ requests for family status accommodation and the applicant’s situation as well as the differing circumstances in play at the time, consideration of these matters will not assist the Tribunal in determining the central issue in this case.
16The statements in paragraph 20 of the Application, paragraph 3 of the Reply and paragraphs 3, 8, 14, 22, 24 and 41 are struck, to the extent that they refer to the situation of other employees, or practices in relation to other employees. Paragraphs 4 and 5 of the amended Application and paragraph 3 of the amended Reply are struck for the same reason.
17The references to “culture” in paragraph 20 of the Application, for the most part, are too vague to assist the Tribunal. In my view, general references to the alleged culture, or to what occurred in relation to others, are not relevant to this Application. However, portions of paragraph 20 refer to the applicant’s own experiences. See for example paragraph 20(d). Rather than striking those portions of the paragraph, the applicant is directed to provided details and particulars of allegations about his personal experiences in his witness statement.
18With respect to paragraph 32 of the amended Application, it is struck if it is not something to which the applicant can attest. In other words, if he in the past has been able to get access to his EAP documents with the respondent’s assistance and this time it was different, he can testify to this. However, if this statement is a reference to the experience of others in getting EAP documentation, it is struck.
strike documents
19The respondent requests that the Tribunal not admit into evidence the documents at Tabs 17, 71, 74, 75 and 77 of the applicant’s Book of Documents because these documents do not pertain to the applicant’s situation but to the situation of others.
20The respondent made no oral or written submissions with respect to the document at Tab 77, which is a two-page Casual/Fixed Term Pre-screen Interview Questions document. With respect to the documents at Tabs 17 and 74, the respondent submits the emails refer to other employees who apparently are seeking family status accommodation from the respondent, but does not pertain to the applicant. The emails and letter at Tabs 71 and 75 pertain to accommodation provided by the respondent to the applicant’s representative, but do not pertain to the applicant.
21The applicant submits that he disclosed these documents mainly to address the respondent’s process, or lack of a specific process, with respect to family status accommodation requests. The documents pertain to cases similar to the applicant’s, although the applicant admits he may not be able to use them.
analysis and decision with respect to documents
22In order for documents to be admissible at a hearing, they must be relevant to the issues the Tribunal needs to determine. The impugned documents at Tabs 17, 71, 74 and 75 are not relevant to the issues I need to determine. The facts in others’ requests for family status accommodation would differ greatly and these documents would not be of assistance as they are not relevant.
23As such, these documents will not be permitted to be introduced as evidence.
witness statements
24The applicant provided witness statements for four other employees of the respondent who also requested or are requesting family status accommodation from the respondent. The four proposed witnesses are the same people in relation to whom the applicant wished to produce their documents dealing with their family status accommodation requests.
25First, the respondent submits that the Tribunal should strike the witness statement of Kevin Arthur, who is being called to testify both as a union representative and as an employee with similar fact evidence. His witness statement in part states he will testify to the respondent’s “aggressive stance on Code Guide excerpts” and “the observed LCBO culture at warehouse toward family status”.
26The respondent also submits the Tribunal should strike the witness statements of Tim Baker, Brett Price and Tricia Hancock, who intend to provide “similar fact evidence” in the sense that they also sought family status accommodation.
27The respondent concedes that in some cases the Tribunal will admit similar fact evidence if its value is not outweighed by its prejudicial effect. In this case, the respondent submits, the experience of others is not relevant to whether or not the respondent discriminated against the applicant. If the circumstances are not the same as the applicant’s, then the evidence is not valuable.
28The applicant submits he intends to call Kevin Arthur with respect to the lack of a remedy.
29With respect to Tim Baker, Brett Price and Tricia Hancock, the applicant submits he intends to call these witnesses to give similar fact evidence to show that the respondent does not have a process to determine family status accommodation requests. He admits the evidence he intends to call may be too broad. However, he also submits that the evidence of all these witnesses will be probative, although he specifically requests the opportunity to provide further particulars with respect to Ms. Hancock’s proposed evidence. Generally as indicated above, he agrees that culture and systemic issues are separate from this Application.
30The respondent also requests that the applicant provide more detailed witness statements with respect to any witnesses permitted to testify
analysis and decision respecting witness statements
31The proposed evidence of Mr. Baker, Mr. Price and Ms. Hancock deal with their particular circumstances, not the applicant’s circumstances. As such, in my view, the evidence of these witnesses will not be helpful to me in determining the issue.
32The test to determine if similar fact evidence will be admitted involves weighing the probative value of the proposed evidence against the prejudicial effect of it, and a consideration of whether the evidence will assist the Tribunal in determining the issue before it. See Sinclair v. London (City), 2008 HRTO 48 at para. 24. The Tribunal must also consider that although similar fact evidence may be valuable, particularly in cases where discrimination is subtle, the Tribunal also is committed to resolving cases on a fair, just and expeditious basis (Sinclair at para. 26). As stated in para. 26 of Sinclair:
[…] the prejudicial effect of hearing evidence not only on the particular incident in question, but one or more other incidents, and the credibility of witnesses in relation to those events, may cause a significant lengthening of a hearing with little benefit for the determination of the issues in the case.
33In this case, given the potentially vast differences between the requests for family status accommodation of the proposed witnesses and the applicant, as well as the differing circumstances in play at the time, the proposed evidence will not assist the Tribunal in determining the central issue in this case. The Tribunal will not hear from Mr. Baker, Mr. Price or Ms. Hancock and their witness statements are struck.
34With respect to Mr. Arthur, he will be permitted to testify not with respect to his personal experiences of requesting family status accommodation but with respect to his involvement in the applicant’s request. Any further issues of relevancy or admissibility with respect to his evidence will be dealt with during the course of his testimony.
35With respect to the respondent’s request that the applicant provide more detailed witness statements with respect to the witnesses who will be permitted to testify, Rule 17.2 of the Tribunal’s Rules of Procedure provides that:
The witness list must include a brief statement summarizing each witness’ expected evidence.
36It is not sufficient for the witness statement to simply state that a witness will testify. For example, the applicant provided a witness statement for Jason Loiselle that states:
Will attest to the contents and events contained in the applicant’s claim for those in which he participated
37The applicant agrees to, and must, provide detailed witness statements for the witnesses he intends to call, in order that they comply with Rule 17.2. A witness statement must be detailed and set out the particular evidence the witness will give, not just list the topics on which the witness intends to testify. The applicant must also file a detailed witness statement for himself including the particulars directed above. See C.D. v. Wal-Mart Canada Corp., 2010 HRTO 426 at para. 7.
disclosure
38As noted above, the respondent requests disclosure of a number of documents, including:
a. arguably relevant documents, including documents related to the custody of his children and the custody proceedings and including all correspondence between the applicant and the children’s mother or counsel for either of them; and all court endorsements and orders;
b. full particulars of his employment, self-employment and income (declared or not) from the time he began working for the respondent in 2011 to the present;
c. full particulars of all attempts the applicant has made to find alternate employment, self-employment or working/business opportunities from the time he began working for the respondent in 2011 to the present;
d. contact information for the employers/businesses for whom the applicant has worked or to whom he has provided services from the time he began working for the respondent in 2011 to the present;
e. his addresses from the beginning of 2012 to the present;
f. the names and addresses of the schools the applicant’s children attended from January, 2012 up to and including January, 2015, with specific dates on which they attended each school;
g. a reason for his claim of privilege over “all notes from Union representatives and people on witness lists”;
h. more detailed witness statements for those witnesses whose witness statements are not struck.
39The respondent submits the test for production of documents is arguable relevance, and that the requested documents are relevant to the family status accommodation issue in this Application. The respondent submits that in such a case the applicant first must prove a legal obligation to care for his children and that he has taken steps to find reasonable childcare before asking the employer for accommodation. See, Canada (Attorney General) v. Johnstone, 2014 FCA 110. Therefore it submits the requested documents are arguably relevant.
40The respondent submits that the financial documents requested are relevant because the applicant has claimed lost wages and because the applicant had a second job which may have impacted his ability to attend work or provide childcare.
41Specifically with respect to the respondent’s request for production of custody documents, it includes correspondence between the applicant and his ex-wife, particularly regarding the childcare that was sought, which spouse had the care of the children and when and the ability of either of them or of someone else to provide care for the children.
42With respect to the claim for damages, the respondent also requests information with respect to housing and moving expenses for the relevant period during which claims for such damages are being asserted.
43The respondent also submits that the applicant should explain why he has claimed privilege over all notes from union representatives and people on his witness lists, but also suggests this may not need to form part of a Tribunal order.
44The applicant submits he has provided some of the requested documents. He agrees to provide the following:
a. Full details of his employment, self-employment and income, as set out in para. 38(b), above.
b. Full contact information for the employers/businesses for whom he has worked since 2011 as in para. 38(d), above.
c. The applicant’s addresses since 2012, as in para. 38(e), above.
d. The names of the schools the children have attended between January, 2012 and January, 2015 and on what specific dates, as in para. 38(f), above.
45With respect to the respondent’s request for custody documents, including all correspondence between the applicant and the children’s mother or counsel for either of them and all court endorsements and orders as in para. 38(a), the applicant submits he provided all documents in which a decision was reached, as opposed to any and all documents leading up to those decisions. If private information was included in the document, it was redacted or was not submitted.
46The applicant agrees to provide information regarding the childcare that was sought, which spouse had the care of the children and when and the ability of either of them or of someone else to provide care for the children.
47With respect to the respondent’s request for information regarding the applicant’s attempts to find alternate employment, self-employment or working/business opportunities from the time he began working for the respondent in 2011 to the present, as set out in para. 38(c), above, the applicant wished to provide further submissions in writing, but failed to do so.
48With respect to the applicant’s claim of privilege as set out in para. 38(g), above, the applicant wished to provide further submissions in writing but failed to do so.
analysis and decision respecting disclosure
49The threshold test for production of documents is arguable relevance, and at the pre-hearing stage, the Tribunal generally will order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns. See McKay v. Toronto Police Services Board, 2009 HRTO 1220 at para. 12.
50The applicant agrees to provide the documents and information as requested in para. 38(b), (d), (e) and (f), above.
51The documents requested in para. 38(c) are relevant to the issue of damages and mitigation and should be produced.
52With respect to the applicant’s claim of privilege, the applicant should provide to the respondent as part of his arguably relevant documents the union notes that are relevant to the applicant’s request for accommodation. The applicant provided no basis upon which he claims privilege over these documents.
53Finally, with respect to the disclosure of custody documents, the respondent’s request is very broad, and relates to documents pertaining to children who are not parties to this Application and who are deserving of special consideration with respect to their privacy. In addition, the applicant’s ex-wife is not a party to this Application.
54Having said that, the applicant raises a family status issue and the facts with respect to who had custody of the children, whether by court order or by agreement of the applicant and his ex-wife, and during what periods of time will be relevant to the discrimination determination.
55The applicant shall disclose to the respondent any correspondence or court orders or endorsements in which there is an agreement with respect to the custody of (de facto or otherwise) between the applicant and his ex-wife from January, 2012 onward. The applicant shall also disclose any information, correspondence or court orders or endorsements pertaining to any discussion between the applicant and his ex-wife or their lawyers with respect to arranging and seeking care for the children, which spouse had the care of the children and when and the ability of either of them or of someone else to provide care for the children.
56If the applicant wishes, he can provide copies of any of these documents with the children’s first names redacted to show just their first initial. In addition, personal information that does not relate to the arrangements for care or to the custody of the children may be redacted. If there is any dispute with respect to redactions, the objecting party may request from the Tribunal a case management telephone call to deal with those.
order
57The Tribunal orders:
a. Paragraph 20 of the Application, paragraph 3 of the Reply and paragraphs 3, 8, 14, 22, 24 and 41 of the applicant’s narrative in the Application are struck to the extent that they refer to the situation of other employees, or practices in relation to other employees;
b. The documents at tabs 17, 71, 74, 75 and 77 of the applicant’s Book of Documents will not be permitted to be introduced as evidence at the hearing;
c. The evidence, and therefore witness statements, of Mr. Baker, Mr. Price and Ms. Hancock will not be permitted to be introduced at the hearing.
d. The evidence of Mr. Arthur will be permitted with respect to his involvement in the applicant’s request for family status accommodation, and any further issues of the relevancy or admissibility of his evidence will be dealt with during the course of his testimony;
e. By no later than four weeks from the date of this Interim Order, the applicant shall deliver to the respondent and file with the Tribunal along with a Form 23 Statement of Delivery (“Form 23”) more detailed witness statements for the witnesses he intends to call, including himself with the details required as set out in paragraphs 19 and 42, above.
f. By no later than four weeks from the date of this Interim Order, the applicant shall deliver to the respondent the documents and information set out in paras. 38(b), (c), (d), (e) and (f), above.
g. By no later than four weeks from the date of this Interim Order, the applicant shall deliver to the respondent the documents set out in paras. 50, 51, 52 and 55 in accordance with the directions provided in those paragraphs and in paragraph 56;
h. By no later than two weeks from the date upon which the applicant delivers to the respondent the documents listed in paras. 50, 51, 52 and 55 of this Interim Order, the applicant and respondent shall advise each other of, and file copies with the Tribunal of, any additional documents the parties intend to rely on at the hearing along with a Form 23. The parties shall bind the Tribunal’s copy of the additional documents, and include tabs and page numbers on each page.
next steps
58The parties shall consult with each other and provide to the Tribunal within two weeks of the date of this Interim Decision three consecutive dates in November and/or December when they are available for the hearing of this matter.
Dated at Toronto, this 4th day of August, 2016.
“Signed by”
Dawn J. Kershaw
Vice-chair