Ligia Arias v. Sasnjay Desai, 1329732 Ontario Ltd. c/a Comfort Suites hotel, Board of Inquiry, September 2002 BOI 02-018

8 Pages·2002·0.27 MB·English

by  Human Rights Tribunal of Ontario/Board of Inquiry

:
BOARD OF INQUIRY
{Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaint by Ligia Arias dated December 4, 2000 alleging
discrimination in employment on the basis of sex, sexual harassment, sexual solicitation and
reprisal.
BETWEEN
Ontario Human Rights Commission
- and -
Ligia Arias
Complainant
- and -
Sanjay Desai, 1329732 Ontario Ltd. o/a Comfort Suites Hotel
Respondents
INTERIM DECISION
Adjudicator Mary Ross Hendriks
Date September 30, 2002
Board File No BI-0454-02
Decision No 02-018-1
Board ofInquiry(Human Rights Code)
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5thFloor, Toronto ON M5G 2P3
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TRIBUNALS
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Toronto,

APPEARANCES
)
Ontario Human Rights Commission Amyn Hadibhai, Counsel
)
)
)
Ligia Arias, Complainant Ligia Arias
)
)
1329732 Ontario Ltd, o/a Comfort Suites Hotel
)
Corporate Respondent Sanjay Desai
)
)
Sanjay Desai
)
Personal Respondent Anthony Barile, Counsel
)
)
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INTRODUCTION
This decision disposes ofa motion brought by the Ontario Human Rights Commission ("the
Commission") on September 26, 2002, seeking the following four orders:
(1) an order that the respondents serve and file their pleadings forthwith;
(2) an order that the respondents provide the Commission and the complainant with
disclosure ofall relevant documents in their possession;
(3) an order that such disclosure by the respondents include a copy ofthe complainant's
personnel file, the complainant's salary records, and the resignation letter of Patricia
Bornais; and
(4) an order allowing the Commission to call the evidence of Patricia Bornais by
conference call during the hearing, as she works and resides in British Columbia.
BACKGROUND
The Complaint before the Board ofInquiry ("the Board") is dated December 4, 2000. It
alleges that the respondents infringed upon the complainant's right to equal treatment with
respect to employment without discrimination because ofsex; violated her right to be free from
harassment in the workplace because of sex; denied her the right to be free from a sexual
solicitation or advance made by a person in a position to confer, grant or deny her a benefit or
advancement; and infringed upon her right to be free from reprisal for rejecting such a sexual
solicitation or advance. In particular, the Complaint alleges that the termination of her
employment subsequent to her rejection ofthese sexual advances constituted reprisal.
On June 24, 2002, during the pre-hearing conference call, the Board directed both the
personal and corporate respondents to make full disclosure and to serve and file their Responses
by July 26, 2002. Despite correspondence between the parties, the respondents have failed to
serve and file their pleadings or make disclosure to date.
THE MOTION
The Commission served and filed a Motion Record and Factum in support ofthis motion.
No written materials were filed by the respondents in response to the hearing ofthis motion. The
respondents acknowledged that their pleadings and disclosure were late, and asked for a short
indulgence.
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Digitized by the Internet Archive
2014
in
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After hearing submissions, the Board specifically directed the respondents to produce the
letter of resignation of Patricia Bornais. The respondents advised the Board that the letter was
lost. The respondents do not dispute that Ms Bornais provided them with a letter ofresignation,
but claim to have no particular recollection ofits contents. The Commission asked the Board to
draw an adverse inference regarding the loss of this document. The Board declined to do so
during the hearing ofthe motion but advised the Commission that it might make this submission
during the hearing on its merits. The Board directed the Commission to speak to Ms Bornais and
ask her to make best efforts to produce a copy ofthis letter.
ORDER
The Board directs:
(1) the respondents to serve and file their Responses by October 7, 2002;
(2) the respondents to make full production by October 7, 2002;
(3) the respondents to produce the complainant's personnel file and salary records by
October 7, 2002;
(4) the Commission to speak to Ms Bornais and ask her to make best efforts to produce a
copy ofher letter ofresignation lost by the respondents; and
(5) Ms Bornais be permitted to provide evidence by way of conference call during the
hearing, on the following conditions:
(i) any exhibits to be relied upon or put into evidence by her must be
sent to herprior to the hearing;
(ii) she may have her own legal counsel with her during her testimony
but no one else;
(iii) she is not permitted to have any notes with her during the call,
other than the intended exhibits;
(iv) counsel for the Commission or the respondents may call her prior
to the hearing to interview her since she is a witness, but she is not
to have contact with anyone else;
(6) All parties are to exchange correspondence naming the witnesses they intend to call,
and such correspondence must include a briefsummary ofthe evidence each witness
will give. The parties are required to exchange this information by October 7, 2002.
The request made by the respondents for exchange offormal willsays is denied; and
(7) the hearing is to proceed on October 29 and 30th' 2002 in Windsor as previously
scheduled, and the Board is not amenable to granting any adjournment requests ifthe
terms ofthis interim decision are not met.
Dated at Toronto, Ontario, this 30th day ofSeptember, 2002.
Mary Ross Hendriks, Vice-Chair
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