Fayssal Matar v. Liquor Control Board of Ontario and G4S Security Services (Canada) Ltd., 2009 HRTO 1456

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fayssal Matar

Applicant

-and-

Liquor Control Board of Ontario and G4S Security Services (Canada) Ltd.

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: September 11, 2009

Citation: 2009 HRTO 1456

Indexed as: Matar v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS BY

Fayssal Matar, Applicant ) Michael Klug, Counsel

Liquor Control Board of Ontario and ) Michael Horvat, Counsel Brian Munro, Respondents )

G4S Security Services (Canada) Ltd., ) William Anderson, Counsel Respondent )

United Food and Commercial Workers Union, ) Bernard Fishbein, Counsel Local 333 )

1This Application was filed October 23, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Case Resolution Conference (“hearing”) is scheduled for December 14 and 15, 2009. This Interim Decision deals with a Request for Order During Proceedings seeking removal of the personal respondent, dismissal on the basis of abuse of process and no prima facie case and addition of parties.

Background

2The applicant self-identifies as a Palestinian, raised in Lebanon and a person who speaks English with an accent. He was employed as security guard with G4S Security Services (Canada) Ltd. (“G4S”) in 2000. G4S had a contract with the Liquor Control Board of Ontario (“LCBO”) to provide security services. The applicant worked at the LCBO’s premises in London from July 16, 2004 until September 2005. The applicant asserts that he was advised by G4S that he would be transferred to a new assignment due to the LCBO’s concerns with regard to his English language competence. The LCBO denies that it had an employment relationship with the applicant and asserts that the reason for the request to transfer the applicant was an incident on September 13, 2005 and not because of his ethnic origin or accent.

Removal of personal respondent

3The Tribunal has generally refused to consider preliminary requests to remove parties in section 53(3) Applications on the basis that most preliminary requests will interfere with the highly expeditious nature of these Applications. However, as the parties have made complete submissions on these issues and the Tribunal is considering the other preliminary issues, I have decided to consider this request at this time.

4I have considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5 in deciding whether to remove personal respondents from a proceeding:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

5The LCBO has accepted that the personal respondent was acting in the course of his employment and there is no issue as to the LCBO’s ability to provide a remedy. In these circumstances, I do not see a compelling reason to continue this Application against the personal respondent and he is removed from the style of cause.

Addition of Parties

6The LCBO has requested that the United Food and Commercial Workers Union, Local 333 (the “union”) and G4S, the applicant’s employer at the time of the events, be added as respondents to these proceedings. The applicant and the proposed parties oppose the request.

7The Tribunal has held that where alleged facts, if proven, could lead to a finding that the proposed respondent infringed the applicant’s rights under the Code; and the proposed respondent would not suffer real and substantial prejudice if added as a party to the proceeding, the proposed respondent may be added as a party to the proceeding, at the Tribunal’s discretion: Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22. While Greenhorn was decided under the old Code, the principles remain applicable in this case.

8The applicable provision of the new Code relating to parties is section 36:

The parties to an application under section 34 or 35 are the following:

1. In the case of an application under subsection 34 (1), the person who made the application.

2. In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.

3. In the case of an application under section 35, the Commission.

4. Any person against whom an order is sought in the application.

5. Any other person or the Commission, if they are added as a party by the Tribunal.

9Under s. 36(5), the Tribunal continues to have a broad discretion to add parties to an application.

The Union

10The LCBO has not set out any allegations which could lead to a finding that the union breached the applicant’s rights and therefore the request to add the union is denied.

G4S

11G4S asserted that they are not a person against whom an order is sought and therefore cannot be added under section 36. However, section 36.5 also contains the discretionary provision to add “any other person.”

12It appears that there are facts alleged that could lead to a finding that G4S breached the applicant’s rights under the Code. Specifically, the applicant alleges that G4S transferred him upon an allegedly discriminatory request by the LCBO related to his English language skills or accent. To the extent that this transfer caused economic loss to the applicant is may be that G4S could share liability for that loss.

13At the same time, I have serious concerns whether the passage of time since these events in September 2005 have caused prejudice to G4S’s ability to respond to these allegations. G4S stated that several employees have left their employ, including Mr. Pimlett who is the person alleged to have received the request by the respondent to transfer the applicant. However, there is no indication whether G4S has made any attempt to locate this witness and the extent of any prejudice, at this stage is speculative.

14On balance, I find that this is an appropriate case to exercise my discretion to add G4S as a respondent to these proceedings. The late addition of the G4S may be a factor considered by the Tribunal in awarding any remedy.

15Accordingly, G4S is added as a respondent to these proceedings. If they have not already done so, the parties are directed to deliver the Application, Response, Statements of Additional Facts and disclosure to G4S within ten days of the date of this Interim Decision. G4S has 35 days from the date of receipt of this decision and the Application to file a Response.

No Prima Facie Case

16The LCBO submits that it was not in an employment relationship with the applicant and therefore there is no basis for a finding that the respondent discriminated against the applicant with respect to employment. I disagree. Section 5 of the Code states that “every person has a right to equal treatment with respect to employment without discrimination…” Employment has been interpreted broadly to include more than the traditional employer-employee relationship. Further, section 9 reads, “No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.” The combination of the broad interpretation of “with respect to employment” and the prohibition on indirect discrimination, satisfies me that the there are facts alleged that could give rise to a finding of discrimination with respect to employment by the respondent. Essentially, the applicant is asserting that the LCBO asked that the applicant be removed as a security guard because of his English language skills or accent. There is no doubt that these circumstances, if proven, could amount to a breach of the Code: Payne v Otsuka Pharmaceutical Co., 2001 CanLii 23231 and Payne v Otsuka Pharmaceutical Company, 2002 CanLii 46516.

17The request to dismiss the Application for lack of a prima facie violation of the Code is dismissed.

Abuse of Process

18The LCBO asserts that the applicant ought to have filed a grievance against the transfer and that the failure to do so amounts to an abuse of process. There is no doubt that the applicant’s concerns with the LCBO could have not been dealt with through the grievance procedure. The request to dismiss the Application as an abuse of process is dismissed.