Peters v. United Parcel Service Canada Ltd. and Gordon

Peters v. United Parcel Service Canada Ltd. and Gordon
Collection
Canadian Human Rights Tribunal
Date
2022-08-15
Neutral citation
2022 CHRT 25
File number(s)
T2201/2317
Decision-maker(s)
Raymond, K.C., Kathryn A.
Decision type
Decision
Grounds
Disability
Sex
Summary:
Ms. Peters worked for UPS. She claimed that Mr. Gordon had sexually harassed her while she was an employee. Ms. Peters claimed that there had also been two events of sexual touching or assault. Ms. Peters’ complaint is against both Mr. Gordon and UPS.
Ms. Peters also claimed that she had a disability and that UPS discriminated against her. UPS disciplined and let Ms. Peters go due to her absences from work. Ms. Peters claimed that her absences were due to her disability and that UPS did not accommodate her.
Mr. Gordon denied that he had sexually harassed and assaulted Ms. Peters. Mr. Gordon denied that the events of the complaint had happened as described by Ms. Peters. Mr. Gordon responded that Ms. Peters had made false claims because she wanted a financial settlement from UPS.
The Tribunal found that Mr. Gordon had sexually harassed Ms. Peters. Mr. Gordon is responsible for his actions. UPS is also responsible for Mr. Gordon’s actions. The Canadian Human Rights Act holds an employer responsible for the acts of its employees. In such cases, the employer can raise the defence provided for by the Canadian Human Rights Act. The employer must prove that it did not consent to the acts and took measures to both prevent the acts and, when such acts occur, minimize their impact. UPS could not benefit from this defence because it did not show that all the conditions were met.
The Tribunal also found that Ms. Peters had a disability, which was the cause of her absences from work. The Tribunal found that Ms. Peters had suffered unfair treatment due to her disability. UPS failed to show that it had made any reasonable accommodations. As a result, UPS is also responsible for discrimination based on disability.
The Tribunal will issue a separate decision on the question of remedies.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
25
Date:
August 15, 2022
File Nos.:
T2201/2317
Between:
Tesha Peters
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
United Parcel Service Canada Ltd.
Respondent
- and -
Linden Gordon
Respondent
Decision
Member: Kathryn A. Raymond, Q.C.
Table of Contents
I. Overview 1
II. Approach to Preparation of Reasons Respecting Liability 2
III. Procedural Rulings 4
A. Motions for Anonymization and Confidentiality Order 4
B. The Addition of a Witness at the Hearing 10
C. The Request to Add Additional Exhibits After the Hearing 12
IV. The Legal Test for Sexual Harassment 15
V. Application of the Burden of Proof in This Case 16
VI. Standard of Proof 18
VII. Assessing Credibility & Reliability of Evidence 18
VIII. Chronology of Alleged Events 19
IX. The Alleged Acts of Sexual Harassment 22
A. The Allegations 22
B. Overview of Available Evidence 23
C. Potential Evidence That Was Not Available 24
D. The Spoliation Issue 25
E. Preliminary Comment Respecting Ms. Peters’ Prima Facie Case 28
F. Overview of Mr. Gordon’s Evidentiary Defence 28
G. UPS’s Position Respecting Ms. Peters’ and Mr. Gordon’s Evidence 29
H. Demeanor 30
(i) Mr. Gordon’s Demeanor 30
(ii) Ms. Peters’ Demeanor 31
(iii) Conclusions Respecting Demeanor in This Case 31
I. The Recordings 33
(i) Approach to Analysis 33
(ii) Mr. Gordon’s Explanation of the Recording 34
(iii) The Framework for Assessing the Recordings 34
(iv) The Content 34
(v) Alleged Prior Friendship Between Ms. Peters and Mr. Gordon 38
(vi) Conclusions About Extent of Friendship up to November 2014 42
(vii) Their Relationship Between November 4, 2014 and December 2, 2014 43
(viii) Conclusion Respecting the Recordings 45
(ix) Mr. Gordon’s Allegation that Ms. Peters’ Call Was a Set-Up 46
J. Whether There Were Repeated Harassing Communications From Mr. Gordon to Ms. Peters 46
K. Alleged Need for Close Supervision & Touching Incident 49
(i) The Alleged Touching 49
(ii) The Need for Close Physical Supervision 50
(iii) Analysis Concerning Alleged Touching 57
L. Alleged Assault in the Parking Lot 58
(i) Overview of the Allegation 58
(ii) Mr. Gordon’s Evidence and Submissions 59
(iii) Analysis of Mr. Gordon’s Position 60
(iv) Reliance on Inconsistent Testimony 61
(v) Analysis Respecting Alleged Inconsistent Testimony 62
(vi) UPS’s Submissions Respecting the Alleged Assault 65
(vii) Analysis of UPS’s Submissions 65
(viii) Fairness 68
(ix) Ms. Jeffers’ Provision of Information About UPS to Ms. Peters 69
(x) Analysis Respecting the Medical Evidence 69
(xi) Conclusion Respecting Alleged Assault 71
(xii) Timing of Assault 71
X. Summary of Findings Respecting Sexual Harassment by Mr. Gordon 72
XI. The Relationship Between the Obligation to Report & Section 65 73
A. Overview of the Reporting Requirement in Franke 74
B. Potential Limits on the Reporting Obligation in Franke 75
C. Explanation of Section 65(2) Statutory Defence 78
D. Overview of UPS’s Section 65(2) Defence 80
E. The Relationship Between the Obligation to Report & Statutory Liability 81
(i) Context 81
(ii) Is There an Obligation to Report in Section 65(2)? 82
(iii) Is the Obligation to Report Relevant to Section 65(2)? 85
(iv) The Sequence of Issues to Be Determined in Sexual Harassment Cases 86
XII. Whether UPS is Liable for the Sexual Harassment 87
A. Did Not Consent to the Commission of the Act 87
(i) Knowledge Versus Consent 87
(ii) A Policy Prohibiting Sexual Harassment 90
(iii) Findings Respecting “Did Not Consent” 91
B. Notice of the Harassment 96
C. What Does “Due Diligence” in Section 65(2) Require of an Employer? 99
(i) The Standard of Conduct Required 100
(ii) Is the Exception in Laskowska Available Under Section 65(2)? 102
D. Prevention 104
(i) The Parties’ Positions and the Content of UPS’s Policy 104
(ii) Analysis and Findings Respecting Policy 106
(iii) The Parties’ Positions and Evidence About Training 106
(iv) Analysis and Findings Respecting Training 110
E. Investigation & Mitigation Efforts 113
(i) Introduction 113
(ii) The Evidence Respecting UPS’s First Steps and First Investigation 113
(iii) UPS’s Finding From the First Investigation 117
(iv) Absence of Steps to Mitigate the Impact of Any Harassment Upon Ms. Peters in Relation to First Investigation 117
(v) Applying the Investigation and Mitigation Effort Requirement in Section 65(2) to the First Investigation 118
(vi) Evidence & Analysis Respecting the Second Investigation 126
(vii) Summary of Findings Respecting UPS’s Investigations 128
(viii) Mitigating or Avoiding the Effects of the Harassment Beyond the Investigation 129
(ix) Conclusion Respecting UPS’s Duty to Mitigate or Avoid the Effects of the Sexual Harassment 131
F. Was the Harassment Reported Before March 2015? 131
(i) Recap & The Issue of What Constitutes Reporting 131
(ii) UPS’ Position Respecting the January 15, 2015 Meeting 132
(iii) Background to Credibility Assessments 134
(iv) Ms. Peters’ Testimony 134
(v) The Alleged Problem with Reporting 136
(vi) Ms. Thompson’s Testimony About the January Meeting 136
(vii) Ms. Thompson’s Testimony About What Happened After the Meeting 142
(viii) Water-cooler Talk 142
(ix) Ms. Thompson’s Communications with Mr. Gordon 143
(x) The Lack of Grievance 144
(xi) Additional Context to the Lack of Any Grievance 145
(xii) Mr. Ghanem’s Testimony 146
(xiii) Did Ms. Peters Report the Harassment to UPS Before March 2015? 150
(xiv) Was Ms. Peters Required to Specify that the Harassment was Sexual? 151
(xv) Whether Ms. Peters Withdrew or Did Not Wish to Pursue a Complaint 153
(xvi) The Helpline and Using Other Options to Report 156
XIII. Summary of Findings Respecting the Section 65(2) Defence 157
XIV. Discrimination Based on Disability 157
A. Overview 157
B. The Legal Test for Discrimination Based on Disability and the Standard of Proof 158
C. UPS’s Liability Arguments 159
D. Chronology of Events Alleged by Ms. Peters 159
E. Chronology of Events Alleged by UPS 162
F. UPS’s Position Respecting Prima Facie Case 165
G. The Analysis 167
(i) Contextual Findings Respecting Alleged Performance Management Issues 167
(ii) Key Assessments of Credibility 168
(iii) The Weight to be Given to UPS’s Attendance and Punctuality Policy 171
(iv) Did Ms. Peters Have a Disability? 173
(v) Did Ms. Peters Experience Adverse Treatment? 177
(vi) If So, Was Disability a Factor in the Adverse Treatment Experienced? 180
(vii) Did UPS Accommodate Ms. Peters? 181
(viii) Conclusion Respecting Prima Facie Case 182
(ix) Summary of Findings Respecting Discrimination Based on Disability by UPS 182
(x) Finding Respecting Section 3.1 of the Act 183
XV. Whether UPS Is Liable for the Discrimination Based on Disability? 183
XVI. Overall Conclusion Respecting Liability 185
XVII. Bifurcation 185
I. Overview [1] Tesha Peters, the Complainant, alleges that she was sexually harassed at work contrary to section 14 of the Canadian Human Rights Act, RSC 1985, c H-6 (the “Act”) by her supervisor, Linden Gordon, the individual Respondent. She states that this occurred while she was employed by United Parcel Service Canada Ltd. or “UPS”, the corporate Respondent. She alleges the sexual harassment happened both in and outside the workplace, that it was ongoing over a prolonged period and that it included two instances of sexual touching/assault.
[2] Mr. Gordon vehemently denies that any such sexual harassment took place. He alleges that Ms. Peters has set him up with false allegations in order to secure a financial recovery from UPS for disciplinary action taken against her because of a history of unacceptable absenteeism.
[3] The Respondent, UPS, disputes that any sexual harassment occurred. However, UPS’s primary defence is that, as an employer with a strict anti-harassment policy, Ms. Peters had an obligation to notify it of any harassment so that it could address the situation. UPS submits that it did not receive notice and, therefore, cannot be held legally liable for any sexual harassment by Mr. Gordon. UPS says that when it did learn of the harassment complaint, it conducted a reasonable investigation and took appropriate action. UPS argues it should not be liable for any finding of sexual harassment against Mr. Gordon and relies upon its compliance with section 65(2) of the Act.
[4] Based on the evidence, the Tribunal finds that Mr. Gordon did sexually harass Ms. Peters. He is liable for his conduct. UPS received sufficient notice that there was a complaint of sexual harassment. UPS is liable for Mr. Gordon’s sexual harassment for not exercising all due diligence to prevent or mitigate the effects of discrimination pursuant to section 65(2) of the Act.
[5] Ms. Peters also brought a complaint of discrimination based on disability against UPS pursuant to section 7 of the Act which was disputed by UPS. However, the actions of UPS employees involved in this issue and certain of UPS’s practices respecting absent employees led UPS to discriminate against Ms. Peters based on disability.
[6] Respecting remedy, Ms. Peters raised a legal issue concerning the Tribunal’s remedial powers under the Act by pre-hearing motion. The motion was adjourned as the issues raised did not need to be decided unless a finding of discrimination was made at the hearing stage and because the Tribunal believed that the motion should be decided after all the evidence has been heard. As the Tribunal has concluded that sexual harassment occurred in this case, the Tribunal will be addressing the Complainant’s motion.
[7] The issue in the motion relates to the total amount of “general damages” that could theoretically be awarded pursuant to the Act. Section 53(2)(e) and section 53(3) of the Act establish a $20,000 “cap” on damages that may be awarded under each section. With limited exception, damages for discrimination have historically been ordered by the Tribunal based on one established complaint, regardless of the number of proven allegations. Ms. Peters’ motion argues that, if the Act is properly interpreted, damages for “pain and suffering” from discrimination pursuant to section 53(2)(e) should be awarded for each substantiated allegation of discriminatory practice in the complaint that is upheld by the Tribunal. Similarly, Ms. Peters asks that damages be awarded to respond to each separate finding of reckless and wilful conduct pursuant to section 53(3) of the Act. Ms. Peters seeks a total award of general damages of $420,000, both jointly and severally against each of the Respondents, based on multiple alleged discriminatory practices.
[8] The Tribunal has determined to issue separate reasons for its decision respecting the issues relevant to remedy, inclusive of its ruling respecting Ms. Peters’ motion about damages. The reasons here are restricted to the Tribunal’s findings in the adjudication of the case on the merits. This includes rulings on process and evidentiary issues and its decision respecting liability with respect to sexual harassment, discrimination based on disability and UPS’s statutory defence pursuant to section 65(2) of the Act.
II. Approach to Preparation of Reasons Respecting Liability
[9] There were 14 days of hearing, many exhibits and written submissions, as well as numerous issues raised. This included the requests for various rulings relevant to the merits and procedure.
[10] The Tribunal has the statutory authority to exercise procedural discretion over its own processes in section 50 of the Act. This includes a reasonable exercise of discretion by the Tribunal in the preparation of reasons, while meeting the obligation of transparency for the parties, for any reviewing court and to enhance the public’s understanding of human rights. Because the rulings and findings lead to lengthy reasons, discretion is being exercised in preparing these reasons in the following ways.
[11] Not all the evidence has been repeated or summarized. To illustrate, the Tribunal did not prepare summaries of each witness’s testimony or of the evidence respecting UPS’s internal education efforts respecting sexual harassment. The lack of reference to any piece of evidence does not indicate that the evidence was not considered and weighed by the Tribunal. Detailed descriptions of the evidence are provided where the conclusions reached are pivotal. Where corroborating direct or indirect evidence was available, the evidence and the Tribunal’s findings received detailed explanation. The analysis in these reasons is also more extensive where the Tribunal concluded it was reasonable to draw inferences based on the preponderance of probabilities respecting what most likely occurred.
[12] All submissions from the parties have been considered, as well. In some instances, arguments have been summarized rather than taking an itemized approach, and the analysis has focused on the most emphasized or persuasive arguments. The Tribunal wishes to thank the parties for their submissions, which were helpful.
[13] A ruling respecting spoliation of evidence is addressed in the context of sexual harassment because this objection is relevant to the overall assessment of evidence respecting this issue. Other rulings are addressed in a separate section devoted to procedural rulings below.
[14] The issues respecting sexual harassment are addressed next, followed by the issues respecting discrimination based on disability. UPS’s section 65(2) defence is addressed in both contexts but primarily in relation to sexual harassment. In raising a section 65(2) defence to the disability-related allegations, UPS did not provide detailed submissions.
[15] The Tribunal is not making a ruling on two points. Although identified in the complaint, the case was not argued as a claim of adverse differential treatment based on sex pursuant to section 7 of the Act. The final submissions of Ms. Peters and the Commission refer to discrimination based on sex in section 7. However, the submissions did not address this issue in any detail. This includes that they did not explain how the legal test to make a finding pursuant to section 7 on the basis of sex was applicable in this case. The Tribunal is unable to make a finding in this regard given that this argument was not adequately advanced.
[16] The complaint also included allegations that Ms. Peters’ compensation had not been adjusted appropriately by UPS following a change in her assigned position and that UPS had failed to correct its error, despite notice. This issue was resolved between the parties.
III. Procedural Rulings [17] As indicated, the parties raised objections and requested various procedural rulings shortly in advance of, during and after the hearing. These concerned an anonymization and confidentiality order, redactions to exhibits, the addition of a witness during the hearing and the addition of exhibits after the hearing concluded. As indicated, the issue respecting spoliation of evidence was raised in the context of sexual harassment and is addressed in that section of these reasons.
A. Motions for Anonymization and Confidentiality Order [18] Ms. Peters brought a motion pursuant to section 52 of the Act a week before the hearing commenced. She requested an order from the Tribunal that her name be anonymized in the decision and in any public records in this proceeding. The motion also requested a confidentiality order prohibiting public disclosure of the evidentiary record in this proceeding whether by sealing the record or by way of redaction.
[19] Mr. Gordon made essentially the same motion based on section 52 of the Act.
[20] Both provided written submissions respecting their requests. All parties agreed to these requests.
[21] Section 52 (1) states, in part:
52. (1) An inquiry shall be conducted in public, but the member or panel conducting the inquiry, may, on application, take any necessary measures and make any order that the member or panel considers necessary to ensure the confidentiality of the inquiry if the member or panel is satisfied, during the inquiry or as a result of the inquiry being conducted in public, that
….
(c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public….
52. (1) L’instruction est publique, mais le membre instructeur peut, sur demande en ce sens, prendre toute mesure ou rendre toute ordonnance pour assurer la confidentialité de l’instruction s’il est convaincu que, selon le cas :
…
c) il y a un risque sérieux de divulgation de questions personnelles ou autres de sorte que la nécessité d’empêcher leur divulgation dans l’intérêt des personnes concernées ou dans l’intérêt public l’emporte sur l’intérêt qu’a la société à ce que l’instruction soit publique…
[22] As identified above, this case involves allegations of sexual harassment including assault. Ms. Peters submits that her allegations and the evidence should not be available to her children, friends, family and be widely available to the public. She says that the personal nature of the sexual harassment allegations will result in undue harm to her.
[23] Ms. Peters asks that her identity in this proceeding be anonymized. She asks that previously published preliminary decisions of the Tribunal be retroactively anonymized.
[24] She submits that the order that she is requesting from the Tribunal will not constitute an undue or unreasonable restriction on the principle that courts are open to the public, because she is not requesting a full publication ban. She is simply asking that her identity be protected. The facts and analysis respecting the case would remain available to the public.
[25] Ms. Peters further submits that the Tribunal should order that the evidentiary record be confidential because the record discloses significant personal, medical and financial details, disclosure of which would result in hardship to her. In this regard, Ms. Peters says that public access to the evidentiary record will jeopardize her anonymity. She further submits that public disclosure of this information would violate her privacy to the point of undue hardship.
[26] Specifically, Ms. Peters has disclosed her complete medical history for the period relevant to her complaint. These records include treatment for mental and reproductive health issues. She has also provided available financial records, some of which concern personal information that should remain private, including her social insurance number and other specific biographical information. She argues that the Tribunal should order that the evidentiary record in this proceeding be confidential, either by means of sealing the record or redaction of personal information in documents.
[27] Likewise, Mr. Gordon requests that the identity of the parties involved in this matter by anonymized in the Tribunal’s decision. Mr. Gordon says that there is a real and substantial risk that he will be caused undue hardship by reason of his name being used when this complaint heard and decided by the Tribunal in relation to his potential efforts to obtain employment.
[28] Mr. Gordon says that he also makes this request out of consideration for the parties’ children (his own and that of Ms. Peters). He submits that by using acronyms for the parties’ names, the risk of stigmatization of and other repercussions for these children will be significantly minimized when the sensitive details of this matter are posted publicly.
[29] As noted, all parties agree that the Tribunal should grant these orders.
[30] In a case management call, the Tribunal explained to the parties that motions for confidentiality and anonymization were not simply granted upon consent of the parties. Section 52(1) makes it clear that “[a]n inquiry shall be conducted in public….” The open court principle is, therefore, a statutory requirement that applies to proceedings before this Tribunal. The parties cannot circumvent this statutory requirement upon consent.
[31] Section 52 allows for a potential confidentiality order to be issued by the Tribunal, but the parties must first persuade the Tribunal that the situation meets the test for granting such an order set out in section 52(1). The Tribunal is required to ensure that the proceeding occurs in accordance with the Act.
[32] It was further explained to the parties that section 52 of the Act recognizes the important societal interest at stake respecting the transparency of our judicial system when motions for confidentiality orders are brought to the Tribunal. The Tribunal is required to conduct an analysis of the evidence and submissions filed in support of any motion to derogate from the open court principle to determine whether that principle should not apply in any respect. In this case, neither moving party had provided any evidence in support of their claim of undue hardship. The parties were given an opportunity to make additional submissions and to file any evidence at the commencement of the hearing in support of their respective motions. Ms. Peters and Mr. Gordon clarified that they wished for their motions to be considered and decided based on the written submissions that they had already filed. The parties were advised that the Tribunal’s rulings in respect of these motions would be provided at the commencement of the hearing.
[33] At the outset of the hearing, the parties were informed that Ms. Peters’ and Mr. Gordon’s motions for anonymization and confidentiality, as well as Ms. Peters’ motion for an order that the evidentiary record be sealed, were denied. The Tribunal provided directions to permit individual documents to be redacted on a case-by-case basis. The parties were advised that the reasons for its rulings would be included with the Tribunal’s decision respecting the merits.
[34] Once a complaint is referred to the Tribunal, the complaint and the names of the parties become public. The Tribunal begins to maintain its record of the proceeding. This record is a public record.
[35] The parties had a history of communications with the Tribunal on the record. Long before these motions were brought, the Tribunal published preliminary written rulings about the case with the parties’ names on its website and CanLII. The Tribunal publishes the dates that hearings are held and had published the fact that this case was going to hearing, citing it by name. As explained, the motions were filed a week before the hearing was scheduled to start. They were not timely. The names of the parties involved in this case were already a matter of public record. Published case law respecting this case was available on the internet.
[36] The principles applicable to motions of this nature have been canvassed in other decisions of this Tribunal: N.A. v. 1416992 Ontario Ltd. and L.C., 2018 CHRT 33; Mr. X v. Canadian Pacific Railway, 2018 CHRT 11; T.P. v. Canadian Armed Forces, 2019 CHRT 10; White v. Canadian Nuclear Laboratories, 2020 CHRT 5; and Woodgate v. Royal Canadian Mounted Police, 2021 CHRT 20. As well, the Supreme Court of Canada provided an overview of the case law respecting derogations to the open court principle in Sherman Estate v Donavan, 2021 SCC 25.
[37] Neither Ms. Peters nor Mr. Gordon provided evidence or submissions to satisfy the Tribunal that there would be undue hardship to these parties, or their children, should the information they seek to have redacted be public. Ms. Peters asserted that her anonymity would be jeopardized. However, she did not explain why she was entitled to anonymity or how a loss of anonymity constitutes undue hardship.
[38] Ms. Peters was concerned about public access to medical records confirming that she had mental health issues and reproductive issues, but she is asserting that she has a disability by reason of those mental health issues. When parties claim that they have a disability, that can consequently place their medical history in issue, in which case any content in a complainant’s medical records may be arguably relevant at the hearing. Ms. Peters did not provide evidence to satisfy a confidentiality or anonymization order in this regard.
[39] Beyond alluding to fears of reaction and alleged stigmatization of their children, the submissions did not provide a persuasive case about what that alleged undue hardship would be. They did not explain how the undue hardship would come to arise. For example, it was not explained how children would likely access the Tribunals’ decision or public record or learn about what happened from others. Mr. Gordon provided no evidence he was actively seeking employment. He has a history of not working for health reasons since the events in this complaint.
[40] “Undue hardship” requires something more than some hardship, embarrassment, or the normal stresses of being a party in a public legal proceeding. There is an aspect of accountability, as well, coincident with the expectation that our public legal system will be transparent. “Undue hardship” requires something more than the discomfort that parties may feel respecting the prospect of third-party judgement of and societal interest in their acts, omissions, allegations and defences in a manner that is attributed to them.
[41] Anonymization of proceedings is only permitted to occur when a party demonstrates a real and substantial risk of undue hardship. The need to prevent disclosure because of likely or foreseeable significant harm to an individual must be sufficient to outweigh the societal interest that the inquiry be conducted in public.
[42] Furthermore, the fact that the complaint includes allegations of sexual harassment does not automatically or presumptively equate to undue hardship. It depends on what the allegations are and how disclosure will impact the individuals involved. In this case, sexual assault is alleged, but the parties filed Amended Statements of Particulars (“SOP’s”) detailing and responding to these allegations. These have been on record since they were filed. The allegations are not of such a nature to generate alarm or concern in advance of testimony about what happened. Ms. Peters did not offer any evidence or information to support her assertion that she would suffer undue hardship if the details of her allegations or Mr. Gordon’s response in this regard became more publicly associated with her name by reason of the hearing and subsequent decision. Neither did Mr. Gordon.
[43] Subject to the exception below, the moving parties failed to persuade the Tribunal that there is a real and substantial risk that the disclosure of the parties’ names or other personal matters will cause undue hardship to them or their children such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public.
[44] The exception is this. The Tribunal ordered that documents or parts of documents could be redacted subject to specific restraints. In this regard, it may be the case that documents entered into evidence will contain irrelevant personal information, including medical or financial information. Any irrelevant information is obviously not needed to decide this case. The parties were encouraged to discuss the issue of redaction of irrelevant personal information amongst themselves to determine whether there was agreement to redact documents or parts of documents based on irrelevance.
[45] The parties did so. As the hearing progressed, the parties agreed that private and irrelevant personal information should be redacted in certain exhibits and redacted exhibits were provided to the Tribunal. The Tribunal provided oversight of these issues and remained available to issue a ruling in the event the parties were not able to reach agreement respecting the redaction of any document. For its part, the Tribunal has prepared these reasons without including personal information unless it is necessary to understand its decision.
B. The Addition of a Witness at the Hearing [46] Ms. Peters requested leave pursuant to Rule 9(3) of the Tribunal’s Rules of Procedure (the “Rules”) to add Mr. Serghei Klimov as a witness during the hearing. Rule 9(3) provides:
9. (3) Except with leave of the panel, which leave shall be granted on such terms and conditions as accord with the purposes set out in section 1(1), and subject to a party’s right to lead evidence in reply,
…
(b) a party who does not, under Rule 6, identify a witness or provide a summary of his or her anticipated testimony shall not call that witness at the hearing…
9. (3) À défaut d’obtenir l’autorisation du membre instructeur, laquelle doit être accordée à des conditions conformes au fins énoncées au paragraphe 1(1), et sous réserve du droit d’une partie de présenter des éléments de preuve en réplique,
…
b) une partie ne peut faire témoigner à l’audience un témoin qu’elle n’a pas identifié conformément à la règle 6 et pour lequel elle n’a pas fourni de résumé du témoignage prévu…
[47] Mr. Klimov had not been identified as a witness by Ms. Peters at the disclosure stage of this proceeding. Ms. Peters asked that he be added because she did not have many witnesses who were co-workers and who could offer relevant observations respecting the alleged sexual harassment in the workplace. Mr. Klimov would be speaking to a different period of time than the other witnesses who were co-workers.
[48] UPS objected, stating that it was prejudiced in its ability to prepare to question this witness. UPS objected, as well, on the basis that this witness had not been interviewed at the investigation stage by the Commission. UPS also indicated that it objected to any evidence this witness would provide.
[49] The Tribunal considered not only Rule 9(3), but also Rule 1(1), as it is required to do. Rule 1(1) states:
1. (1) These Rules are enacted to ensure that
(a) all parties to an inquiry have the full and ample opportunity to be heard;
(b) arguments and evidence be disclosed and presented in a timely and efficient manner; and
(c) all proceedings before the Tribunal be conducted as informally and expeditiously as possible.
1. (1) Les présentes règles ont pour objet de permettre
a) que toutes les parties à une instruction aient la possibilité pleine et entière de se faire entendre;
b) que l’argumentation et la preuve soient présentées en temps opportun et de façon efficace;
c) que toutes les affaires dont le Tribunal est saisi soient instruites de la façon la moins formaliste et la plus rapide possible.
[50] The Tribunal was satisfied that any prejudice to UPS’s ability to prepare could be addressed by affording UPS time to prepare within the existing schedule of the hearing. Because of the length of the hearing, it was possible to provide extra time easily, without impacting the timeliness, efficiency or schedule of the hearing. The hearing was already set to be held over periods of days with ample breaks in between.
[51] There is no rule that a witness must be interviewed at the investigation stage before the individual can be a witness at the hearing. Commission investigations serve only to generate information upon which the Commission screens complaints to determine whether there is a basis for referral of the complaint to the Tribunal for inquiry. The Commission would be unable to investigate as many complaints as it does if it had to interview every potential witness. There is no requirement for the Commission to identify and interview all witnesses at the investigation stage.
[52] With respect to UPS’s potential objections to the testimony of this witness, the Tribunal was disinclined to make any evidentiary ruling before any evidence was offered.
[53] The witness was scheduled to appear at a time that UPS agreed afforded sufficient time to prepare. The Tribunal directed that any objections to the testimony of this witness could be raised at the time the disputed testimony was offered and that arguments could be made about what, if any, weight should be placed on all or part of this evidence.
[54] When Mr. Klimov testified, his evidence was quite limited. It focused upon his account that an interaction with Ms. Peters occurred at work in which she described being harassed and that UPS’s Human Resources (“HR”) was not doing anything about the harassment. He testified that she was very upset and frustrated. Shortly afterwards she was no longer at work. No further objections were raised by UPS.
C. The Request to Add Additional Exhibits After the Hearing [55] The parties were provided with an updated List of Exhibits prior to final submissions. The Tribunal intended to remove all documents from the joint Book of Documents provided for the hearing that were not made exhibits in order to create a Book of Exhibits for its review based on the List of Exhibits generated at the hearing. Only documents that are accepted into evidence as exhibits during the hearing are to be considered for purposes of the Tribunal’s decision. The parties were provided with a list of the documents that were to be removed and were given an opportunity to identify any possible errors regarding what was being removed as a further means of re-confirming the accuracy of the record of exhibits.
[56] Ms. Peters and the Commission advised that they saw no errors with the List of Exhibits and that the appropriate documents had been properly removed from the record because they had not been made exhibits during the hearing.
[57] Mr. Gordon advised that he wished to add one document to the List of Exhibits, namely Tab 28 of Document 28 in the Joint Book of Documents. He also advised that a portion of a document not on the List of Exhibits, namely Tab 4 of Document 125, should be included as part of the record of the proceeding as it had been marked as an exhibit.
[58] UPS wished to add two other documents to the List of Exhibits, namely Tab 170 and 172. This was on the basis that they were referred to by one or more of the parties and “form part of the record of this litigation as required by the Tribunal’s rules.” The Tribunal’s Rules require each party to file an SOP that includes a list of witnesses and a will-say statement for each witness. It is in this manner that the Tribunal ensures pre-hearing disclosure of all arguably relevant information. The documents in question were will-say statements of Ms. Peters and one of her witnesses, Ms. Jeffers.
[59] Mr. Gordon agreed to UPS’s requested additions.
[60] Ms. Peters’ counsel agreed that Mr. Gordon had correctly identified that Tab 4 of Document 125 had been made an exhibit and helpfully referenced the location on the recording of the hearing. Ms. Peters’ counsel objected to the addition of Documents 170 or 172 to the List of Exhibits on the basis that they were not made exhibits. Counsel stated that she had reviewed her notes from witness examinations and the closing submissions of the parties and found no reference to these documents. She objected to the addition of these documents as exhibits after the hearing had concluded. Ms. Peters’ counsel did not take a position respecting Mr. Gordon’s wish to ensure that Tab 28 of Document 28 was an exhibit.
[61] UPS did not correct Ms. Peters’ assertion that the documents had not been addressed by any witness during the hearing or during final submissions and took no position respecting Mr. Gordon’s request.
[62] The Tribunal decided to postpone its ruling respecting the objection to these additional documents until it had an opportunity to consider the case in its entirety, with the intent to advise the parties of the outcome in its final decision.
[63] The expected and usual process in a hearing before this Tribunal is that the parties will tender all evidence that they wish to ask the Tribunal to consider in making its decision at the hearing and will request that all documentary evidence be entered into the Tribunal’s record of the proceeding as exhibits within the time set for the hearing. Hearings have a clearly demarcated beginning and end during which evidence may be submitted. Bringing closure to the hearing is necessary for the timeliness and efficiency of the proceeding and is in the interests of finality and certainty. In this case, the parties had been reminded to bring forward any unmarked documents that had been discussed with a witness in testimony that they wished to be entered into evidence while the hearing was ongoing. The parties were not asked by the Tribunal to indicate whether there were any documents that they wished to have added to the List of Exhibits after the hearing concluded.
[64] In legal proceedings, after a hearing ends, but before the decision is issued, motions can be made to request that additional evidence be considered. Typically, parties that bring these motions allege that there is new evidence that was not available or known at the time of the hearing. Submissions are required and an evidentiary basis via affidavit evidence is provided by the party seeking such relief to establish that the evidence is, in fact, “new”, as is defined in relevant case law.
[65] It is most often the case that, when motions are brought in legal proceedings to add evidence, if the evidence was available and could have been submitted during the hearing, it is not permitted to be added after the fact. In this case, the documents identified by UPS and Mr. Gordon had been in the possession of the parties all along.
[66] These parties had not raised an issue regarding any omission on their part to submit documentary evidence. They made a request to add documents that were not made exhibits at the hearing in response to a request by the Tribunal that they confirm that documents were being accurately removed because they were not exhibits. There was no intent by the Tribunal to re-o