Khaiter v. York University, 2009 HRTO 1489

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Khaiter

Applicant

-and-

York University, Barry Miller and Rhonda Lenton

Respondents

-and-

York University Faculty Association

Intervenor

interim decision

Adjudicator: David Muir

Date: September 16, 2009

Citation: 2009 HRTO 1489

Indexed as: Khaiter v. York University

1This is an Application filed on April 8, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he has suffered discrimination in the area of employment on the basis of ethnic origin and place of origin.

2A number of Requests for Order during Proceedings (“Request(s)”) have been filed by the parties, raising overlapping issues. As indicated in an earlier Case Assessment Direction, a key preliminary issue is the scope of the Application. The applicant has sought to amend the human rights complaint underlying the Application and the respondents have made a Request that the amendment be struck. In addition, there are overlapping Requests with respect to the identity of the individual respondents. The applicant has sought leave to add a number of individual respondents. The respondents, York University and several of its employees, seek an Order removing all of the individual respondents. The applicant has also filed a Request which includes requests for Orders in the nature of interim relief.

3This Interim Decision deals with the Requests that have raised issues of the scope of the Application, including the party status of various individual respondents. The parties’ submissions to a significant degree conflated the issues of the subject matter of the Application and the identity of the respondents. However, I will deal with these issues separately. This Interim Decision also deals with the applicant’s requests for Orders in the nature of interim relief. The remaining issues, in particular the respondents’ Request for an early dismissal, will be dealt with in a half day oral hearing to be scheduled.

The Subject Matter of the Complaint

4The complaint filed with at the Ontario Human Rights Commission (the “Commission”) on January 15, 2007 (the “original complaint”) alleged discrimination in employment on the basis of place of origin. The respondents to the complaint were York University, Barry Miller, Lorna Marsden and Rhonda Lenton. The original complaint appears to have been properly amended by the addition of the further ground of ethnic origin. The applicant abandoned the original complaint and made an Application to the Tribunal on or about April 8, 2009. Included in the Application was an “amended complaint”. This latter document has a date stamp indicating that it was received by the Ontario Human Rights Commission on March 13, 2009.

5The applicant states that he first sought to amend the original complaint by the addition of Mamdouh Shoukri to the list of respondents in June 2008. Further amendments were sought in July 2008. These requests for amendment related to Ms. Marsden leaving the University and her replacement by Mamdouh Shoukri.

6In addition, the applicant sought to expand the particulars of the original complaint with allegations that Mr. Shoukri failed to appropriately respond to a number of requests that he stop the discriminatory treatment of the applicant by other employees of the University. These requests for amendment of the original complaint were reiterated in a letter to the Commission in November 2008. At the same time, the applicant sought to amend the narrative in the original complaint to add a lengthy self identification. He also alleged, without particulars, that colleagues who share his ancestry and country of origin are subject to systemic discrimination at the hands of the University. Finally, he alleged a new act of discrimination by the respondents on October 30, 2008. It appears that the Commission did not respond to any of the applicant’s requests to amend the original complaint.

7The applicant stated that, having heard nothing from the Commission, he consolidated these various requests into the amended complaint which he delivered to the Commission on March 13, 2009. In addition to the allegations set out above, he added as particulars that two letters written to Mamdouh Shoukri in February and March 2009 were without response.

8The respondents’ submissions focus on the amendments to the original complaint as set out in the document delivered to the Commission in March 2009 and included in the Application. The respondents’ concerns relate both to the new allegations made by the applicant and new and expanded requests for remedies.

9The applicant states that his requests to amend the original complaint were all provided to the Commission prior to December 31, 2008 and the Commission was bound to deal with them. Accordingly, the applicant states that the Tribunal has no jurisdiction to deny any of these amendments.

10On this point, the issue is not whether the Tribunal has jurisdiction to deny the amendment but rather what was the complaint that was abandoned at the Commission and transferred to the Tribunal. It is plain from the applicant’s submission that the Commission did not respond to any of his requests to amend the original complaint. Indeed he states that because the Commission did not respond to his requests to amend before December 31, 2008, he delivered an amended complaint to the Commission in March. I am satisfied that the original complaint had not been amended (other than by the addition of place or origin) prior to December 31, 2008.

11As the respondents correctly stated, the Commission had no jurisdiction to deal with the applicant’s complaint after December 31, 2008. Accordingly, the document delivered to the Commission in March 2009 did not amend the complaint. For this reason the complaint which was abandoned and transferred to the Tribunal in April 2009 was the January 2007 complaint amended to add the ground of place of origin, as described in paragraph 4 above.

12That said, the real question for determination is whether or not the applicant should now be permitted to amend his complaint and consequently the Application in light of Rule 12 which provides as follows:

12.1 To file a section 53(5) Application an Applicant must complete the Application (Form TR-1), deliver it to the Respondent(s) and file it with the Tribunal. A complete Application must provide the information requested in every section of the Application form and must include all required attachments.

12.2 The completed section 53(5) Application (Form TR-1) must be filed between January 1 and June 30, 2009 and must include:

a) the complaint or the amended complaint filed at the Commission; and,

b) the Commission complaint file number.

12.3 Section 53(5) Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission.

12.4 Where an Applicant wishes to add parties, combine two or more complaints to be dealt with together as a single application, or, having regard to Rule 12.3, amend the complaint, the Applicant may identify any such requests in their Application.

13The respondents state that the applicant should not be allowed to expand the complaint by the addition of the allegations set out in the document filed with the Commission in March 2009.

14Although the Rules respecting section 53(3) and 53(5) applications are not identical in that preliminary requests to add parties or amend the subject matter of the complaint would not normally be entertained in a section 53(3) application, Rule 12 clearly contemplates that a section 53(5) application will be based on the subject matter of the complaint as it was when abandoned at the Commission.

15Generally speaking a section 53(5) application will be limited to the subject matter of the complaint made to the Commission and the Tribunal will only exercise its discretion to allow amendments where it is necessary to ensure to the fair, just and expeditious disposition of the application. I am not satisfied based on the material filed that it is necessary to the fair, just and expeditious resolution of the Application to allow most of what the applicant seeks by way of amendments to the complaint.

16The applicant relies upon the Tribunal’s Interim Decision in Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16, a decision flowing from quite different statutory language and not particularly helpful in resolving this issue.

17Some of the new allegations are in respect of events occurring after the filing of the complaint in January 2007. Included in this category are the alleged failure of Mamdouh Shoukri to respond to various letters from the applicant, new allegations against Rhonda Lenton and Barry Miller and the allegation that his health has been affected by the discrimination. The applicant also alleges that co-workers who share his ancestry and place of origin are subject to systemic discrimination. In addition, he makes new allegations against the intervenor, York University Faculty Association (“YUFA”). As indicated earlier, the applicant significantly modified the remedies he is seeking. For example, the applicant now seeks $50,000,000 from the University and $50,000 from each of the individual respondents.

18With respect to the amendment which at length and in elaborate detail sets out the applicant’s self-description as it relates to the prohibited grounds of ethnic origin and place of origin, I find that it adds nothing new to the Application and, as a clarification of the claim of discrimination made in the January 2007 complaint, is permissible.

19The allegations against YUFA are not a proper amendment. YUFA is not a respondent in the Application. The respondents cannot properly respond to allegations against YUFA. It would be inconsistent with a fair, just and expeditious resolution of the Application to include these allegations in this Application.

20Similarly, the Application will not be amended to add the allegations of systemic discrimination. The January 2007 complaint does not raise any suggestion of systemic discrimination against similarly situated persons. I find that it would not be appropriate to expand the scope of the Application to include allegations of systemic discrimination at this late stage, there being no indication that a consideration of these allegations is necessary to the fair, just and expeditious resolution of the Application

21The other allegations all relate to events occurring subsequent to the January 2007 complaint. The applicant describes them as evidence of the “ongoing discrimination, harassment, humiliation and reprisals” in his employment. The applicant submits that these allegations do not change the subject matter but merely illustrate the new instances of discrimination by other officials of the University. I am not satisfied that it is necessary to a fair, just and expeditious resolution of this Application to allow its expansion to include allegations of events occurring after the filing of the complaint.

22The respondents also take issue with the applicant’s purported amendment of the remedies he is seeking. The Tribunal has generally not limited an applicant in these cases to the remedies that were indicated in the complaint when an expanded request is made well in advance of the hearing although a review of recent awards by the Tribunal suggests that an award of the magnitude now sought would be a highly extraordinary result. In the circumstances the amendment is permitted. I also allow the Application to be amended to include the allegation that the applicant’s health has been affected as this is an issue that goes, primarily, to remedy. I remind the applicant he bears the onus of proving this allegation and of his obligation to produce any arguably relevant evidence in support of this claim.

Adding and Removing Respondents

23The applicant seeks to add Mamdouh Shoukri, Paul Craven, Sheila Embleton and Gary Brewer as individual respondents. The respondents resist the Request and seek an Order removing the original named respondents Barry Miller, Lorna Marsden and Rhonda Lenton.

24The principles that Tribunal has considered when dealing with this issue have been set out in enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31:

Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14 at para 42:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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.

25The respondent, York University states that it is a corporation and it takes responsibility for the conduct of its employees and officials. All of the individuals named are employees of the University with the exception of Paul Craven.

26The applicant states that all of the individual respondents are necessary for the fair, just and expeditious resolution of the Application. In respect of several of the individuals identified, I do not agree.

27Considering first the individuals the applicant seeks to add, Mr. Shoukri took office as President of York University several months after the filing of the original complaint. There are no allegations made against him. I find that it is not necessary to the fair, just and expeditious resolution of this matter to add Mr. Shoukri as a respondent.

28As regards Mr. Craven, there are no allegations made against Mr. Craven in the original complaint. Mr. Craven is first mentioned on the Application to the Tribunal. The applicant alleges that Mr. Craven and YUFA conspired against him and that the allegations as against YUFA are the subject of another Application before the Tribunal. Although this is not entirely clear from the materials, the allegations seem to relate to Mr. Craven’s role as adjudicator in six grievances involving the applicant. They arise out of an adjudicative process over which the Tribunal likely has no jurisdiction. Most importantly the allegations are also outside of the scope of the complaint. I find that it is not necessary to the fair, just and expeditious resolution of the Application to add Mr. Craven as a respondent.

29With respect to proposed respondents Embleton and Brewer, again there are no specific allegations made against them in the original complaint. In his submissions in support of adding these two individuals, the applicant appears to assert that these two individuals declined to reverse disciplinary decisions taken by others. I am not satisfied that the addition of these two respondents is necessary to the fair, just and expeditious resolution of the Application.

30I will now deal with the Request of the respondents to remove the individuals named in the original complaint. In respect of Rhonda Lenton, the applicant has alleged that as his direct supervisor she is the “most central figure amongst all of the personal respondents and her conduct is the most central issue in this Application.” The applicant makes a number of sweeping general assertions in respect of Ms. Lenton in support of this submission. The applicant also asserts that he will be seeking apologies from all of the respondents and would be deprived of the opportunity to seek this remedy if the individual respondents are removed.

31Although they are only allegations at this stage, it is clear Ms. Lenton and to a lesser extent Mr. Miller have played a central role in the employment relationship between the applicant and the University. It is possible given their role in the disputes between the parties that individual remedies might be appropriate were this Application to succeed. Where an individual remedy is a credible possibility should allegations be proved, the Tribunal will exercise its discretion to add, or not remove, respondents in the appropriate circumstances. Given the centrality of these two individuals to the allegations in the Application, I decline to remove them as respondents.

32On the other hand, Ms. Marsden has only a tangential role in this matter. The allegations are confined to the assertion that the applicant wrote to Ms. Marsden on ten occasions and that nothing was done to prevent the alleged discrimination. In the circumstances I find that Ms. Marsden’s participation as a party to these proceedings is not necessary to a fair, just and expeditious resolution of the merits.

Request for Interim Order

33The applicant filed a Request for Order During Proceedings requesting a number of Orders including Orders in the nature of interim relief. These Requests are summarized as follows:

a. an Order compelling the respondents to stop ongoing discrimination and harassment;

b. an Order directing the respondent university and its president to investigate all the reported instances of “discrimination, harassment and humiliation” in the workplace and to discipline those responsible, up to and including dismissal and to report the results of the investigation to the Tribunal within 30 days of the Order;

c. an Order directing the respondent University in consultation with the applicant, to provide the applicant with a harassment and discrimination free workplace, if necessary by changing his supervision and to report the results to the Tribunal within 30 days of the Order;

d. an Order directing the corporate respondent University to revoke all disciplinary actions imposed on the applicant and reinstate his salary and to report its compliance to the Tribunal within five days of the Order.

34The Tribunal is committed to the fair, just and expeditious resolution of the merits of all transitional applications under section 53(3) and 53(5) and its transitional processes are designed for timely resolution of all applications.

35Although the Tribunal Rules Governing Transitional Applications under Section 53(3) and 53(5) of the Code do not specifically provide a process to request an “interim remedy”, the Tribunal has the discretion to shorten any time limit, Rule 4.3 (a), and take any other action that the Tribunal determines is appropriate, Rule 4.3 (m), to ensure the fair, just and highly expeditious resolution of a transitional application. The Tribunal will determine on a case-by-case basis whether it is necessary to make interim orders in order to ensure a fair, just and expeditious resolution of an application.

36Rule 23 of the Rules of Procedure Governing Applications under Part IV of the Code sets out the Tribunal’s general approach to interim remedies. While these Rules are not directly applicable to transition applications, they do give an indication of the evidence and standard expected in a request for an interim remedy. In this case, the applicant has not filed any evidence, nor made any submissions on whether the Application has merit or whether the balance of harm or convenience favours granting the interim remedy requested.

37Therefore, the request for an Interim Remedy is denied.

Other Issues

38In the applicant’s Request filed on June 16,2009, the applicant also sought an Order under Rule 3.2(a) deeming Mamdouh Shoukri and Paul Craven to have accepted all of the allegations in the Application, including the allegations set out in the original complaint. As neither is added as a respondent, there is no basis for such an Order.

ORDER

39The respondent, Lorna Marsden is removed as a respondent and the style of cause amended accordingly.

40The Application is amended to allow:

• Inclusion of the applicant’s self-description as it relates to the prohibited grounds of ethnic origin and place of origin;
• Inclusion of the allegation that the applicant’s health has been affected; and to
• Increase the monetary remedy sought.

Case Assessment Directions

41The Tribunal will hear oral submissions on the respondents’ Requests for Dismissal of the Application. The parties are directed to provide their available dates for a one day hearing in the weeks of February 1 and February 8, 2010.

42If the intervenor intends to participate in this aspect of the proceeding, it may request to do so within ten days of the date of this Interim Decision setting out its reasons for doing so and its position on the issues raised by the respondents.