David Mullan

The personal respondent, Muhamad Omarbach, applied for costs against the Ontario Human Rights Commission after the human rights complaint against him was dismissed.

The Tribunal found that the Commission's decision to amend the pleadings to allege the respondent's personal involvement, without adequate investigation and based solely on a belated identification at mediation, rendered that aspect of the complaint trivial or frivolous.

The Tribunal exercised its discretion to award costs, discounting the amount due to the respondent's conduct during the hearing, and ordered the Commission to pay $8,000.

The Ontario Human Rights Commission brought a motion to dismiss an application for costs made by a successful personal respondent, arguing the Tribunal lacked jurisdiction under section 41(4) of the Human Rights Code because the complaint was sustained against other respondents.

The Tribunal dismissed the Commission's motion, finding that the discretion to award costs under section 41(4) applies whenever a complaint against a specific person is dismissed, regardless of whether complaints against other respondents in the same proceeding were sustained.

The complainant, a black Christian from southern Sudan, alleged discrimination in the provision of services by a butcher at a hallal meat store.

The adjudicator found that the butcher initiated a verbal altercation regarding religion and ethnicity, which escalated into a physical attack with a meat cleaver.

The adjudicator concluded that the butcher discriminated against the complainant on the basis of creed and ethnic origin contrary to section 1 of the Human Rights Code.

The corporate respondent was held jointly and severally liable under section 45(1) of the Code.

The complainant was awarded $10,000 in general damages and $5,000 for mental distress.

The respondents brought a motion for non-suit at the conclusion of the Commission's case, arguing the evidence failed to establish a prima facie case of discrimination in the provision of a service under section 1 of the Human Rights Code.

The adjudicator exercised his discretion to allow the respondents to bring the motion without electing to forego calling evidence.

However, the adjudicator dismissed the motion on its merits, finding that the testimony, if believed, provided a sufficient nexus between the events complained of and a prohibited ground of discrimination to establish a prima facie case.

During the hearing of a human rights complaint, respondents' counsel conceded to breaching the rule in Browne v. Dunn by failing to put contradictory evidence to the complainant and a witness during cross-examination.

The Tribunal ruled that the complainant could return to the witness stand to respond to the contradictory testimony.

However, the Tribunal declined to recall the other witness, who had been inappropriately followed and harassed by one of the respondents during a recess.

Instead, the Tribunal held that the breach regarding the witness's testimony would be addressed by discounting the weight of the respondent's contradictory evidence.

The Ontario Human Rights Commission sought to withdraw from active participation in a human rights complaint after reaching a settlement with the respondents that was unacceptable to the individual complainant.

The complainant objected to the Commission's withdrawal.

The Board of Inquiry held that it had no authority to compel the Commission to continue to carry the complaint or to review the settlement.

However, to ensure a fair transition for the unrepresented complainant, the Board exercised its power to control its process by ordering the Commission to prepare and file a statement of facts before withdrawing.