Emily Garland v Scott Tackaberry operating as Grape and Grain

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Garland v. Tackaberry [3] This complaint focuses upon one such regular customer of Mr Tackaberry’s business and an allegation about that customer’s conduct towards Ms Garland, starting in early 2009. The complainant says that the customer, Raymond Berg, was repeatedly lewd and made disgusting sexual advances towards her, which she rejected and frequently reported to the respondent. For his part, Mr Tackaberry acknowledges only a single complaint about the customer, which he investigated and presumes that he dealt with, because he then heard nothing more from the complainant. Ms Garland’s employment ended on 8 May 2010. [4] The complainant filed a complaint with the Manitoba Human Rights Commission on 25 October 2010, alleging in essence that her former employer knew about the ongoing harassing conduct by the customer, but failed to do anything about it. On 24 August 2012, the Chief Adjudicator designated me as the Board of Adjudication, pursuant to s. 32(1) of The Human Rights Code, CCSM c. H175 (referred to below as the Code). Procedural issues [5] Deletion of complaint under s. 20. Although the original complaint included an allegation under s. 20 of the Code, the Commission advised in its letter of 14 January 2013 that it had abandoned the s. 20 component of the complaint. Given that s. 34(a) the Code assigns carriage of the complaint to the Commission, I accordingly dismiss the complaint against the respondent, as it relates to the s. 20 allegation. [6] Suppress publication of names from the public notice of hearing. Both the complainant (through the Commission) and the respondent had requested that I suppress publication of their respective names from the public notice of hearing, pursuant to s. 36(2) of the Code. I denied both requests at the pre‐hearing stage, indicating that my reasons would follow. I found that the grounds for both requests were insufficient to outweigh the presumed publicity that the Code and the administration of justice generally promote. For the complainant, the Commission had pointed to the following grounds: (1) the complainant was still a university student and had not yet secured permanent employment; (2) she would give “evidence of an explicit and personal nature”, to which she did not want her name publicly attached; and, (3) she says that she has been receiving anonymous and threatening e‐mails. However, (1) it would be a fallacy if any potential employer of the complainant were at some future time to infer 2
Garland v. Tackaberry from the mere making of this complaint that the complainant is somehow undesirable as an employee; (2) the “explicit and personal” evidence was not particularized in the original request, and the evidence of that nature which eventually came out at the hearing was unnecessary and only of minimal relevance to the complaint itself; and, (3) any unwanted e‐mail messages pre‐dated the publicity of this hearing. Turning to the respondent, he worried that publicity would do “irreparable damage” to his reputation. However, the naming of a respondent in a public notice of hearing is not a valid ground for anyone to assume the illegal conduct of that person. At most, a public notice of hearing records the fact that an allegation has been made against a respondent but that the respondent contests and rejects the allegation. In any event, there is a strong presumption of publicity that informs the Code, and the respondent offers no compelling reason to suppress publication. [7] Deletion of information in these reasons that would disclose the identity of the complainant. Relying upon s. 46(3) of the Code, the Commission asked that these reasons for decision not identify the complainant by name, citing (1) expected evidence of a personal and intimate nature, and (2) protection of the complainant from undue future prejudice in seeking and holding permanent employment. I have denied the Commission’s request. Pointing to the reasons already set out above in refusing to suppress publication of the complainant’s name in the public notice of hearing, I find that disclosure would not cause undue prejudice or hardship to the complainant. I am further inclined to arrive at this conclusion for these further reasons: (1) this decision does not treat in detail or at any length the “personal and intimate” evidence to which the Commission referred; and, (2) it emerged during the hearing of this complaint that the complainant no longer uses the name by which she is identified in these reasons for decision, and I had already made an order during the hearing that the new identity by which the complainant now chooses to be known would not be referenced on the public record, which includes these reasons for decision. In short, while I decline to delete identifying information about the complainant’s name, I have protected her against publication of the name that she now prefers. Issues [8] Three principal issues arise out of this complaint: 3
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Emily Garland v Scott Tackaberry operating as Grape and Grain

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