Williams v. Toronto Transit Commission, 2016 HRTO 200

Human Rights Tribunal of Ontario

B E T W E E N:

Donald Williams Applicant

-and-

Toronto Transit Commission Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: February 12, 2016 Citation: 2016 HRTO 200 Indexed as: Williams v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Donald Williams, Applicant Self-represented

Toronto Transit Commission, Respondent Lucy Siraco, Counsel

Introduction

1The hearing of this matter is scheduled for February 25-26, 2016.

2This Interim Decision addresses the respondent’s Request for Order During Proceedings (“RFOP”) filed on February 1, 2016. In the RFOP, the respondent requested production of certain materials, particulars in regards to a certain portion of the applicant’s witness statement, and clarification from the Tribunal regarding the issues in dispute and the scope of evidence that will be permitted in this case.

3By e-mail dated February 2, 2016, the Tribunal advised the parties as follows:

Given that the hearing of this matter is at the end of the month, the time limit for the applicant’s response to the RFOP is abridged to February 8, 2016.

4In his Response to the respondent’s RFOP, the applicant provided what appears to be a partial response to the RFOP. However, he also took issue with the Tribunal’s shortening of the time limit for the filing of his Response to the RFOP. He claimed that this demonstrated bias against him. I note that under Rule 1.7(a) of the Tribunal’s Rules of Procedure, the Tribunal has the power to shorten or lengthen any limit. The Tribunal must frequently shorten time limits when RFOPs are filed shortly before a hearing.

5By Case Assessment Direction (“CAD”) dated February 9, 2016, I provided the applicant until noon on February 11, 2016 to file any further responding submissions to the respondent’s RFOP, failing which I would decide the RFOP based on the material before me. The applicant did not file any further submissions by the deadline set out in my CAD and the time for doing so has passed.

respondent’s Production Request

6The respondent requested production of the following documents and particulars:

a. Any and all hours that the applicant was working or acting in a capacity other than for his employment with the respondent during the time period relevant to the Application. In particular, the respondent requested (1) the applicant’s T4 slips for any income earned in 2010; (2) any and all records that reflect income the applicant earned for working or providing services in a capacity other than his employment during the relevant time period; (3) Any and all records that reflect when the applicant was working or providing services in a capacity other than his employment with the respondent during the relevant time period.

b. The respondent requested that the applicant provide sufficient particulars with respect to his expected evidence of two alleged meetings he had with Nick Valente in regards to the assignment of overtime work.

7I deny the respondent’s request for production of the documents referenced in subparagraph 3(a) above. While these documents might have some probative value to the issues in dispute, in my view, any probative value is outweighed by the likelihood that such evidence would derail the hearing and detract from the issues before me. What is relevant is whether the applicant was available for overtime work during the relevant time period and whether he ever filed any of the necessary forms or otherwise communicated to the respondent his interest in overtime hours during the relevant period of time. These are questions that the respondent may explore in its cross-examination of the applicant.

8I agree with the respondent that the applicant must provide the particulars requested by the respondent at para. 10 of its RFOP. In my view, such particulars are central to the applicant’s claim that he was denied overtime in breach of the Code. I also find that it is necessary that the applicant produce the particulars prior to the hearing to permit the respondent to conduct any inquiries it needs to conduct to respond to this expected evidence given its centrality to the issues in dispute.

9Therefore, I grant the respondent’s request for the following particulars:

a. the dates and times of the alleged meetings with Mr. Valente referred to at para. 2 of the applicant’s witness statement, or in the alternative an approximate time frame in which these meetings occurred;

b. where the alleged meetings took place;

c. the length of the meetings;

d. what the applicant alleges he said to Mr. Valente during each alleged meeting;

e. whether anyone else was present during the alleged meetings;

f. whether the applicant recorded and/or possesses recordings of the alleged meetings.

Respondent’s request for clarification re. issues in proceeding

10The respondent requested a clarification of whether the alleged Code breaches to be considered in the hearing include the applicant’s allegation of reprisal or only his allegation of discrimination based on association with a person identified by one of the grounds protected under the Code.

11As the respondent notes, in Interim Decision, 2014 HRTO 593, I stated as follows:

Upon my review of the Application, the respondent’s submissions do appear to have merit in part in that there appear to be no facts set out in the Application that would support a reprisal as that term is defined under the Code. A reprisal under the Code occurs when a person is retaliated against for claiming and enforcing his or her rights under the Code, or for instituting or participating in proceedings under the Code. The applicant has not provided any information in his Application that would link his allegations with any attempt on his part to claim or enforce his rights under the Code or to institute or participate in proceedings under the Code.

However, there is information in the Application that seeks to provide a link between the applicant’s allegations and his association with his co-worker who he claims is a person identified by a prohibited ground. In my view, the issues raised by the applicant and respondent in relation to this Code ground are not appropriately resolved by way of summary hearing. They may only be resolved after hearing evidence in a hearing on the merits. Summary hearings do not involve the hearing of any evidence. In order to address the respondent’s refutation of the applicant’s version of the facts, a hearing on the merits must be held.

12In that Interim Decision, I denied the respondent’s request for a summary hearing and/or to dismiss the Application for failure to make out a prima facie case of discrimination.

13As noted above, it is not clear to me that the applicant has provided any information in his Application that would link his allegations with any attempt on his part to claim or enforce his rights under the Code or to institute or participate in proceedings under the Code. However, I did not dismiss his reprisal allegation but instead found that I needed to hear some evidence before determining his Application.

14Accordingly, the issues to be determined in this case are those set out at para. 5 of my January 29, 2016 Reconsideration Decision, 2016 HRTO 131 which are reproduced in para. 17 below.

Respondent’s request to strike portions of Applicant’s witness statement

15The respondent requests an Order striking parts of the applicant’s witness statement.

16At para. 5 of my January 29, 2016 Reconsideration Decision, 2016 HRTO 131, I noted that the applicant’s witness statement included allegations and events that fall outside the scope of this Application.

17I noted that the issues raised by the case are narrow in scope and they are the following:

a. whether the respondent discriminated and/or reprised against the applicant by denying him overtime opportunities sometime between January 2, 2010 and June 28, 2010.

b. whether the respondent discriminated and/or reprised against the applicant on June 19, 2010 by detailing him to do work he “does not do”.

18I stated that the applicant will be permitted to provide testimony in relation to the above allegations and time frames only.

19For greater certainty, the respondent requested that I strike all parts of the applicant’s witness statement that extend beyond the allegations and time frames referenced at para. 5 of my January 29, 2016 Reconsideration Decision.

20In particular, the respondent requested that I strike the portion of para. 5 of the applicant’s witness statement in which he alleged that Ms. MacGregor continues to favour certain operators up to the present day. I grant the respondent’s request as any events subsequent to June 28, 2010 do not form part of this Application.

21The respondent also requested that I strike para. 6 of the applicant’s witness statement in which he refers to a grievance he filed which appears to have been subject to a Memorandum of Settlement (“MoS”). The respondent submits that these references to the previous grievance and MoS should be struck as they have no nexus to the allegations and timeframes in this case. I find that it is not appropriate to strike this paragraph or to make a determination at this time on the admissibility of any evidence relating to the applicant’s previous grievance and/or the MoS signed by the parties. Such evidence may be relevant to the applicant’s reprisal allegation in so far as it might provide an alleged event to found the applicant’s claim of reprisal. However, I note that some of the evidence relating to the grievance and/or MoS may be irrelevant and/or inadmissible for some other reason (for example, if subject to settlement privilege). Determinations on the admissibility or inadmissibility of testimony in relation to the grievance and/or MoS cannot be made in advance and are best left to the hearing.

Applicant’s disclosure of Documents to be relied upon at the hearing

22Rule 16 of the Tribunal’s Rules of Procedure sets out a two stage disclosure process. Parties must first disclose all arguably relevant documents to each other (Rule 16.1) and then, later in the process, they must disclose to each other and to the Tribunal documents on which they intend to rely on at the hearing (Rule 16.2).

23I reproduce the relevant Rules below:

16.2 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver to every other party (and file a Statement of Delivery):

a) a list of documents upon which the party intends to rely; and

b) a copy of each document on the list or confirmation that each document has already been provided to the other parties in accordance with Rule 16.1.

16.3 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must file with the Tribunal:

a) a list of documents upon which the party intends to rely; and

b) a copy of each document contained on the list.

24In my January 29, 2016 Reconsideration Decision, I directed the applicant to file with the Tribunal and deliver to the respondent copies of the documents he intends to rely upon at the hearing. He has failed to do so. The applicant must comply with the documentary disclosure required under Rules 16.2 and 16.3 no later than February 18, 2016.

25The applicant should note that Rule 16. 4 sets out the following consequence of failing to comply with Rules 16.2 and 16.3:

16.4 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.

order and direction

26For the reasons set out above, the Tribunal orders as follows:

a. I deny the respondent’s request for production of documents but grant its request for particulars.

b. No later than February 18, 2016, the applicant must provide the particulars listed in para. 9 above to the respondent in writing and copy the Tribunal. I will seek submissions from the parties at the hearing as to an appropriate way to proceed if the applicant fails to comply with this Order.

c. The respondent’s request to strike the portion of para. 5 of the applicant’s witness statement that refers to events subsequent to June 28, 2010 is granted. The respondent’s request to strike para. 6 of the applicant’s witness statement is denied.

d. The applicant must comply with the documentary disclosure required under Rules 16.2 and 16.3 no later than February 18, 2016. Specifically, he must file with the Tribunal a list of the documents he intends to rely upon at the hearing as well as a copy of each document contained on the list (Rule 16.3). He must also deliver to the respondent a list of the documents he intends to rely upon at the hearing. In addition, he must deliver to the respondent a copy of each document on the list or confirmation that each document has already been provided to the respondent in accordance with Rule 16.1 (Rule 16.2). The applicant will not be permitted to 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, without permission of the Tribunal (Rule 16.4).