Kumar v. Ontario (Transportation) (No. 1), 2008 HRTO 335

INTERIM DECISION

INTRODUCTION

1. In this complaint a former employee of the Ministry of Transportation (the "Ministry") alleges that he was discriminated against on the grounds of ethnic origin and race during the period of his employment as a part-time examiner with a driver examination centre.

2. This interim decision deals with requests by the Ministry to strike certain allegations made by the complainant, on the basis of undue delay, lack of particularity and the conclusions in the Case Analysis of the Ontario Human Rights Commission (the "Commission").

BACKGROUND

3. The complainant was employed from January 2, 2001 to August 30, 2003 by the Ministry. On October 14, 2003, he made a complaint under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") against the Ministry and his former supervisor. Among the allegations in the complaint are that the complainant was assigned an undesirable shift, was denied positions for which he applied, and was subjected to a higher degree of scrutiny than other employees, because of his ethnic origin and race.

4. During the investigation by the Commission, allegations about the complainant's suspension from work from April 2003 to the end of his employment, and the circumstances around the failure of the complainant to be hired by a private service provider after August 2003 were added to the complaint.

5. On February 22, 2007, the Commission's investigator provided a Case Analysis Report to the parties in which he summarized the investigation and set out his recommendations to the Commission. Although the investigator recommended that the subject matter of the complaint be referred to the Tribunal for a hearing, in the report he concludes that there is a lack of evidence to support some of the allegations.

6. In June of 2007, the Commission decided to refer the complaint to the Tribunal for a hearing. Following unsuccessful efforts to resolve the complaint through mediation, the parties filed hearing briefs in April to June of 2008, during which the Ministry raised the issues addressed here.

7. The Ministry's request to strike portions of the allegations is directed at the complainant's Statement of Facts. To provide some context, the Commission's Statement of Facts of April 2003 focused on the complainant's suspension from work, and the complainant's unsuccessful attempt to obtain employment with the private service provider to which the Ministry transferred its driver examination services on August 30, 2003. It did not set out facts relating to other allegations found in the original complaint. In his own Statement of Facts, the complainant requested that the hearing before the Tribunal also include allegations about five occasions in which he states he was denied job advancement opportunities, as well as one occasion when he states an individual was improperly hired through a placement agency. He also asks that his allegations about excessive scrutiny while on the job be included.

THE MINISTRY'S OBJECTION

8. I will deal with the Ministry's objections relating to delay and lack of particulars together as they are interrelated in their effect on the complaint.

9. Among the allegations in his complaint of October 2003 are the following references to job competitions:

• On April 22, 2001, I applied for a full-time inside examiner position;
• On October 12, 2001, I applied for a different full-time position;
• I subsequently applied twice for a full-time inside examiner position
• In or around April 2003, I was interviewed for the position of a public search clerk.

10. In the complainant's Statement of Facts, he identifies the job competitions at issue as:

11. The Inside Examiner (2001)

12. Inside Examiner (2001-2002)

13. Inside Examiner (date unknown)

14. Public Search Clerk

15. Driver Examiner

16. The original complaint also states that "at the same time [the individual respondent] hired an experienced person through a placement agency and subsequently offered that person the position on a permanent basis." This allegation is repeated in the complainant's Statement of Facts. The original complaint alleges that during his employment, two individuals subjected him to a higher degree of scrutiny, and provides two examples. The complainant's Statement of Facts includes allegations of excessive scrutiny but describes a different set of events than that set out in the complaint.

17. The original complaint thus identifies a total of five positions for which the complainant unsuccessfully applied and an additional position that he believes was improperly filled. The Ministry received notice of the complaint by letter dated October 16, 2003 and filed a response on November 19, 2003. The Ministry's response stated, among other things, that it required particulars of these specific allegations.

18. The Ministry made a request that the Commission exercise its discretion not to deal with the complaint pursuant to section 34 of the Code (as it then was), and the Commission notified the parties by letter dated February 21, 2005 of its decision to investigate the complaint. An investigator subsequently contacted the Ministry in March of 2006.

19. The correspondence between the Ministry and the Commission documents the Ministry's efforts to locate documents relating to the job competitions at issue. It appears that it was unable for a time to locate any records, and asked for more information about which competitions were at issue, which was provided in August 2006. The Commission's Case Analysis of February 2007 reviews the parties' positions on the allegations and the information submitted by each. It appears that the Ministry was unable to provide any records for two of the competitions at issue and provided partial records for the others.

20. The Ministry submits that the allegations in question should be struck from the pleadings because information about the specific job competitions at issue was not made available to it until August 2006. The Ministry states that only then was it made aware of which competition files were relevant. The Ministry states that through the passage of time, various job competition documents have been destroyed or have become lost. It appears that some job competition records were destroyed by a Records Clerk contrary to the Ministry's own records retention policies, following the filing of the complaint but before August 2006 (there is no suggestion in the materials that the clerk had knowledge of the complaint).

21. The Commission filed submissions on the Ministry's objections urging the Tribunal not to allow the Ministry's requests to strike the allegations at issue. Among other things, the Commission submits that any prejudice to the Ministry is as a result of its own conduct and delay in taking steps to preserve evidence. There is no evidence, it states, that the Ministry took any significant steps to determine the precise job competitions at issue when it first received the complaint. The Commission also states that, with respect to the particularity of the allegations, the Case Analysis sets out in sufficient particularity the basis for the complainant's belief that race and ethnic origin were factors in the decision-making process. Despite the fact that these particulars do not appear in the complainant's Statement of Facts, they are sufficient particulars to provide notice to the Ministry of the complaint.

22. On my review of the material before me, I am satisfied that the allegation in the Statement of Facts about the job competition for "Inside Examiner (date unknown)" should be struck. In the complaint it was referred to as a "full-time position" without any further detail. It does not appear that the complainant has ever provided further details about this competition except at some point to specify that it involved the position of Inside Examiner. Indeed, in the Case Analysis the Commission's investigator concludes that "it is unclear when, or even whether, such a competition took place." In Jeffrey v. Dofasco, 2004 HRTO 5 [reported 49 C.H.R.R. D/112], the Tribunal stated that a "hearing should not be tantamount to a guessing game". I am satisfied that the respondent cannot reasonably be expected to answer an allegation about its conduct in a job competition on the basis of the mere thread of information provided.

23. I am also satisfied that the facts referred to in the complainant's Statement of Facts relating to excessive scrutiny should be struck. As indicated above, and to put this issue in perspective, the complaint provides two examples of excessive scrutiny. The Case Analysis sets out the complainant's understanding of these events, and the resondents' response. The complainant's Statement of Facts raises an entirely different basis for the complainant's assertions that he was subjected to excessive scrutiny. I am satisfied that it is simply too late in the day for the complainant to shift the focus of this allegation to raise issues about which he has known for many years.

24. The inadequacy of particulars on the above matters cannot be fairly addressed through giving the complainant an opportunity to provide further particulars. Such an opportunity would amount in this case to allowing an expansion of the complaint many years after its inception, and after the parties have spent considerable time presenting their positions during the Commission investigation.

25. I am not convinced that there is a basis to strike the balance of the contested allegations from the Statement of Facts on the basis of undue delay or inadequacy of particulars. The correspondence establishes the Ministry's efforts to locate the documents relevant to the job competitions after an appointment of a Commission investigator in 2006. However, there is no indication what efforts the Ministry made before that time to search for and preserve evidence. Although the Ministry argues that upon receiving the complaint that it required more particulars, I am not satisfied that the absence of particulars prevented the Ministry from reviewing its own records at that stage and locating and preserving any relevant documents.

26. I am also not convinced that the complainant failed to provide sufficient particulars of the remaining job competitions. The Ministry is aware which competitions are at issue. The Commission's Case Analysis documents the basis of the complainant's beliefs about the role his race and ethnic origin played in these competitions. It cannot be said that the Ministry does not have sufficient notice of the allegations to provide a defence.

27. The Ministry asks the Tribunal to strike portions of the complainant's pleadings on the basis of findings made in the Commission's Case Analysis. The Ministry asserts that the Case Analysis narrowed the issues to be referred to the Tribunal.

28. It is true that the Commission's own investigator made conclusions about the merits of certain of the complainant's allegations. However, the investigator ultimately recommended that the Commission refer the "subject matter of the complaint" to the Tribunal without limiting the allegations and the referral letter from the Commission confirms this. I am satisfied the Commission has referred the complaint in its entirety and all the allegations contained in it are therefore properly before me.

29. The Ministry submits the complainant's allegations are broad, general and sweeping. In essence the Ministry's concerns go to the merits of the complainant's case and whether there is a prima facie case of discrimination on the basis of the complainant's allegations.

30. Given the very expansive nature of the case and the material before me, I find it would not be fair, just and expeditious to simply allow the complaint to proceed without an assessment of whether there is indeed a case to meet on some of the allegations. I therefore direct that at the commencement of the hearing, the complainant will present his evidence and submissions on the allegations he was denied positions as an Inside Examiner in competitions #1, #2 and #3 in the Case Analysis, as a Driver Improvement Counsellor, and as a Public Search Clerk, because of his race or ethnic origin. He will also present his evidence and submissions on his allegation that the respondents hired an individual through a placement agency, who was subsequently offered a permanent position instead of the complainant because of race or ethnic origin.

31. The Tribunal will then consider whether there is a basis to proceed to hear these allegations, and will make further directions about the hearing.