Emeka Chukwudi v. The Corporation of the City of Brampton, John Marshall, Helen Ferreira and Penny Wyger, 2009 HRTO 1805

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emeka Chukwudi

Applicant

-and-

The Corporation of the City of Brampton, John Marshall, Helen Ferreira and Penny Wyger

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: October 28, 2009

Citation: 2009 HRTO 1805

Indexed as: Chukwudi v. Brampton (City)

1This Interim Decision relates to two Applications. One Application was filed December 23, 2008 under section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) and will be referred to as the transition Application. The other application was filed March 16, 2009 under section 34 of the Code and will be referred to as the section 34 Application. The respondents are the same in both Applications. The respondents in the section 34 Application have not yet been directed to file a Response (Form 2).

2The Case Resolution Conference (“hearing”) is scheduled for November 27, 2009. The respondents have filed Requests for Orders during Proceedings seeking early dismissal of some or all of the allegations, or in the alternative, further particulars and production.

Subject Matter of the Applications and Processing Applications Together

3The original complaint filed with the Ontario Human Rights Commission (“Commission”) on October 5, 2007 alleged discrimination with respect to employment on the basis of age, colour, ethnic origin, place of origin, race and reprisal, relating to the corporate respondent’s failure to hire the applicant for numerous positions to which he had applied in the previous six months. There are allegations of overtly discriminatory comments and actions by the personal respondents.

4The section 34 Application attached the October 2007 complaint. Those allegations that already form the basis of the transition Application cannot be re-filed as a section 34 Application: Guzina v. Ontario (Environment), 2008 HRTO 57.

5The only new events in the section 34 Application relate to an allegation that the respondents terminated the applicant’s work at the respondents’ premises or led his employer to terminate his work at the respondents’ premises. The applicant does not identify when the termination could place, but the response indicates that it took place in April and September 2008. Those post-transition Application events are properly the subject matter of the new section 34 Application, subject to the timeliness objection.

6The second new event is an allegation that the respondents improperly called in the Peel Police to intimidate the applicant. Again, there is no date associated with this allegation, but from the response, it appears that this event occurred in November 2007. Accordingly, this is properly the subject matter of the section 34 Application, subject to the timeliness objection.

7It would fair, just and expeditious to address the transition Application and the section 34 Application together in the hearing currently scheduled for November 27, 2009. I note the respondents’ concern that the addition of these post-transition allegations could considerably lengthen the hearing and lead to a request for an adjournment. Nonetheless, these concerns can be addressed at the hearing. In light of the numerous witnesses that appear to be involved, it is unlikely that the hearing will finish on the first day in any event, and future dates can be established to accommodate any additional time needed by the respondents.

Delay

8The respondents objected to the delay in filing the section 34 Application. With respect to the respondents’ alleged influencing of the applicant’s employer to terminate his employment in April and September 2008, these events fall within one year prior to the March 2009 Application and therefore are not untimely.

9With respect to the allegation relating to the November 2007 involvement of the Peel Police, this event occurred more than one year prior to the filing of the section 34 Application. Section 34 of the Code sets out the time limitations for filing Applications under the Code.

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

10Under s. 34, the Tribunal may deal with an application filed more than a year after the incident, or the last incident in a series, if it is satisfied that the circumstances in s. 34(2) exist, that is, that the delay in filing the application was incurred in good faith and there is no substantial prejudice to the respondents.

11The Member hearing this matter will address when the above issue of timeliness will be addressed. The applicant should be prepared to address, if called upon, the reason for the delay from November 2007 to March 2009 in raising the November 2007 events.

Subject Matter of the Applications

12To the extent that the applicant’s submissions raise new allegations that the use of Workpolis is a form of discrimination and other new matters, they do not form part of the subject matter of the present Applications.

Particulars

13In paragraph 13 of the transition Application, the applicant alleges that he spoke with two supervisors who told the applicant that he was better qualified than the candidates hired. The respondents request particulars of who the supervisors are, when the conversations took place, and the particular competitions the comments related to. The applicant is directed to provide the particulars described above.

Production of the Applicant’s Documents

14The respondents requested confirmation of the applicant’s educational qualifications as set out in his resume to support his assertion that he was qualified for the positions applied for and overlooked for reasons related to discrimination. The applicant’s resume indicates various degrees, certificates and diplomas. The respondents requested confirming documentation of the applicant’s employment history such as records of employment, income tax returns with confidential information omitted, business cards, etc.

15The difficulty I have with these requests is the respondents’ response to the Applications is not that the applicant falsified his resume, but that, based on the resume submitted at the time he was not qualified or not as qualified as the successful candidates.

16If, in fact, the applicant’s resume is not accurate, that is relevant to the issue of remedy, but it is not arguably relevant to the issue of liability

Bifurcation of the Hearing

17This would appear to be a suitable proceeding to bifurcate the proceeding and address the allegations of discrimination first. Accordingly, the documents requested are not arguably relevant to the issue of liability and need not be disclosed at this time.

18The respondents have made further requests for documents that are only relevant to the issue of remedy. Those requests for production can be raised again, at the appropriate time.

Production of the Respondents’ documents

19The respondents have requested to produce a redacted version of the resumes of the successful candidates, removing personal information (names, addresses, contact information, former employer names and reference information). I agree that the production of the resumes in this format is appropriate at this time. If the applicant requires further information about the successful candidates, he may write to the Tribunal to explain why such information is required

Delivery of Documents

20The applicant has requested that the respondents deliver all materials by regular mail, rather than courier, as he does not want strangers at his residence. The respondents seek a direction permitting courier delivery, as this permits them to confirm delivery. The Tribunal Rules provide that delivery may be made by courier and I see no reason to vary the Tribunal Rules in this case.

Filing Response, Witness Lists and Documents

21The respondents are directed to file with the Tribunal and deliver to the applicant a Response to the Section 34 application within 14 days of the receipt of this Interim Decision. I am satisfied that an abridged time for filing the Response and directing delivery to the applicant is fair and just given the respondents have been aware of these allegations since March of this year. The parties shall file their witness lists and witness statements, if any, in respect of the section 34 allegations by November 20, 2009. Any difficulties in meeting these timelines will be addressed by the Member at the hearing on November 27, 2009.