Sloan v. Great Blue Heron Casino, 2016 HRTO 1043

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zachary Sloan Applicant

-and-

Great Blue Heron Casino Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: August 5, 2016 Citation: 2016 HRTO 1043 Indexed as: Sloan v. Great Blue Heron Casino

WRITTEN SUBMISSIONS

Zachary Sloan, Applicant Self-represented

Great Blue Heron Casino, Respondent Kathryn Bird, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. The applicant essentially argues that after he began working for the respondent as a Table Game Dealer at the respondent’s Casino, the respondent failed to provide him with regular day shifts to accommodate his disability, and then, after the applicant’s continued advocacy for accommodation, terminated his employment. The Response indicates that the applicant’s employment was terminated during his probationary period because his performance was not satisfactory, but the applicant maintains that his performance was satisfactory and the respondent is fabricating evidence of poor performance to justify the termination of his employment for discriminatory reasons.

2This Interim Decision addresses the applicant’s request of July 6, 2016 for the contact information of various respondent employees to summons them as witnesses to the hearing scheduled for September 14 and 15, 2016. Further, this Interim Decision deals with the applicant’s request to amend the Application. It also provides directions with respect to the first day of the hearing.

Request to Amend

3The applicant filed a Request for Order During Proceedings to amend his Application, namely, to add reprisal as an allegation and to be more clear about his allegation that the respondent failed to accommodate his disability. He also seeks to correct a statement regarding what happened on July 28, 2015.

4The respondent consents to the Request. Given the consent, the Tribunal’s encouragement of accurate facts in any Application, and the implication of both the allegation of reprisal and failure to accommodate in the original Application, the Request to amend is granted.

Request for Contact Information of Witnesses

5The applicant earlier made a request for the contact information of respondent employees which was denied by the Tribunal, 2016 HRTO 875, while leaving open the possibility that “the Tribunal may revisit this decision if the applicant provides more information about the evidence he believes each of the employees may give.” (Paragraph 13)

6The applicant’s recent submissions provides that information, and indicates that the respondent is not allowing him to contact its employees in order to prepare for the hearing of the Application. He argues, correctly, that there is no property in a witness, however, the respondent takes the position that it can only provide contact information, which is confidential, to the applicant if ordered to do so by the Tribunal.

Proposed Witnesses and Whether the Respondent Must Provide Contact Information

7With respect to the proposed witness, Rhonda Burrows, the applicant states that she was the respondent’s trainer who assessed his performance during his five week training period, and who communicated to him that he should not have any problem meeting performance expectations. I agree that her evidence may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. However, given that the respondent recently confirmed that it is calling Ms. Burrows as one of its witnesses, I see no need for the respondent to provide the applicant with her contact information. He will have the opportunity to cross-examine her at the hearing.

8With respect to the proposed witness, Kerri O’Brien, the applicant states that she is a supervisor who observed his performance and told him that he was not deficient in any way as he told her the respondent had warned he was. I agree that this evidence may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well, and the respondent must therefore provide the applicant with Ms. O’Brien’s contact information.

9With respect to Ms. O’Brien’s anticipated evidence that the respondent discriminated against others, the Tribunal will decide at the hearing, after oral argument, as to whether that kind of evidence should be allowed. With respect to her anticipated evidence that she advised the applicant as to how to deal with the respondent in requesting accommodation, the Tribunal will decide at the hearing, after oral argument, as to whether that kind of evidence should be allowed.

10With respect to the proposed witness, Lisa Collins, the applicant states that she was also a supervisor, and allegedly told him that his performace was “excellent”. I agree that this evidence may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. Also, the applicant referred to the respondent’s recently filed document, a Shift Incident Report, that is authored by Ms. Collins, and that indicates that Ms. Collins assessed the applicant as providing poor customer service. I agree that this evidence may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. However, given that the respondent recently confirmed that it is calling Ms. Collins as one of its witnesses, I see no need for the respondent to provide the applicant with her contact information. He will have the opportunity to cross-examine her at the hearing.

11With respect to the proposed witness, Annie Ngo, the applicant states that she was a supervisor who allegedly told him that his performance was “terrific”. I agree that this evidence may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. However, given that the respondent recently confirmed that it is calling Ms. Ngo as one of its witnesses, I see no need for the respondent to provide the applicant with her contact information. He will have the opportunity to cross-examine her at the hearing.

12With respect to the proposed witness, Cindy McCabe, the applicant appears to argue that she will testify that he performed well because a conversation he had with her and another employee was friendly. I do not see how this evidence would be relevant to his alleged performance short-comings. Given the apparent irrelevance of this evidence, I would not order the respondent to provide Ms. McCabe’s contact information on this basis. However, the applicant also points to a conversation with Ms. McCabe in which she stated that the respondent has “a history of targeting certain employees”. While it is not clear as to whether the information she gave to the applicant is related to the allegations of the applicant, the applicant should be provided with her contact information to interview her prior to the hearing in order to ascertain whether she witnessed discrimination of other employees so similar to what the applicant alleges he endured as to make such evidence appropriate for the hearing of the Application. The parties may be called upon at the hearing to argue this issue. In the meantime, the respondent must provide the applicant with Ms. McCabe’s contact information.

13With respect to the proposed witness, Allison Gibson, the applicant states that she observed his performance in order to determine whether it was deficient as alleged by the respondent, and she told him that it was not. Her evidence may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well, and the respondent must therefore provide the applicant with Ms. Gibson’s contact information. However, the applicant should note that the Tribunal is unlikely to allow Ms. Gibson to testify about any opinion she might have given the applicant that the respondent was “targeting” the applicant because of his accommodation request, and the parties may be called upon at the hearing to argue this point.

14With respect to the proposed witness, Wing Lei, another supervisor, the applicant states that she told him that his performance was not deficient, and that the respondent targeted her in a discriminatory fashion. While it is unclear as to whether any testimony about any discrimination against Ms. Lei will be allowed at the hearing, and the parties may be asked to provide submissions then, her anticipated testimony about the applicant’s performance may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. The respondent must therefore provide the applicant with Ms. Lei’s contact information.

15With respect to the proposed witness, May Deng, another supervisor, the applicant states that she told him that his performance was not deficient. Her anticipated testimony about the applicant’s performance may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. The respondent must therefore provide the applicant with Ms. Deng’s contact information.

16With respect to the proposed witness, someone with a name that sounds like Chrysty O’Boggle or Begley, another supervisor, the applicant states that she told him that his performance was not deficient, and that she witnessed the applicant telling Wendy Horne, who conducted a review of the applicant, that he required accommodation. Her anticipated testimony about the applicant’s performance may be relevant to whether the respondent is fabricating evidence that the applicant did not perform well. Also, her anticipated testimony about the applicant making a request for accommodation may be relevant. The respondent must therefore provide the applicant with this employee’s correct name and contact information.

Summary of Orders to Respondent to Provide Contact Information

17The respondent must immediately provide to the applicant the correct spelling of the names of Kerri O’Brien, Cindy McCabe, Allison Gibson, Wing Lei, May Deng, and Chrysty O’Boggle or Begley, as well as a last known telephone number or email address for each in order that the applicant might ask them what they witnessed as regards his allegations.

18If the applicant wishes to summons any of these potential witnesses to provide relevant testimony, then he must notify the respondent, and the respondent must then immediately provide an address for each witness address identified by the applicant may serve them with any summons.

19The applicant must familiarize himself with the documents on the Tribunal’s website to prepare for the hearing, including those which discuss serving a summons on a witness such as the hearing guide. It is his responsibility to arrange for and to finance any witness he requires to attend the hearing.

20The Tribunal will offer to the parties mediation-adjudication at the commencement of the hearing, pursuant to Rule 15A of the Tribunal’s Rules of Procedure. However, if mediation-adjudication fails to resolve the Application, the applicant must be prepared to testify himself on the first day of the hearing, and his witnesses on the second day of the hearing, except for his proposed witness who is a doctor. On the first day of the hearing, the Tribunal will deal with the anticipated evidence of the doctor and decide whether the doctor’s testimony is appropriate, and, if so, when it will occur.

Further Directions

21The parties must be prepared to deal with any outstanding issues, including any requests for production, at the commencement of the hearing.