HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohammed Lebbe
Applicant
-and-
Direct Energy Marketing and John Rea
Respondents
case Resolution Conference DECISION
Adjudicator: David Muir
Indexed as: Lebbe v. Direct Energy Marketing
AppearanceS BY
Mohammed Lebbe, Applicant ) No one appearing )
Direct Energy Marketing Ltd ) David C. Turner
And John Rea, respondents ) Counsel )
1This is an Application filed on November 24, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant self-identifies as a Canadian citizen of Sri Lankan origin. He alleges discrimination in employment on the basis of race, colour and ethnic origin. The respondents filed a Request for an Order for dismissal of the Application on the basis that the applicant had not set out any facts in the human rights complaint underlying the Application, which could enable the Tribunal to draw a connection between the treatment of the applicant by the respondents and a prohibited ground under the Code.
3In a Case Assessment Direction dated August 26, 2009 the Tribunal directed that the most fair, just and expeditious way to proceed was to deal with the respondents’ Request to Dismiss at the outset of the Case Resolution Conference (“hearing”). At that time the Tribunal noted that the applicant had not attended a scheduled mediation and had not filed a Statement of Additional Facts and Remedies Requested, but that the applicant indicated he would attend the hearing.
4At the time and place set for the hearing the applicant was not in attendance. In accordance with the usual practice the commencement of the hearing was adjourned for 30 minutes. After waiting 30 minutes the applicant was still not in attendance. I was satisfied that the applicant received proper Notice of the hearing and it proceeded in the absence of the applicant.
5The respondents made oral submissions in support of their Request to Dismiss. The Application was dismissed at the hearing for the following reasons.
6The applicant was an employee of the respondent corporation for approximately three years. The personal respondent was a supervisor of the applicant. The Application sets out particulars of performance related criticism by the personal respondent which the applicant states was unjustified. At its highest the Application includes an allegation that the personal respondent waged “a campaign of unrestrained harassment inclusive of innuendos, bias and professional impropriety, which eventually took the form of adverse Performance Reports and Letters of Warning”. This “campaign” it is alleged, led to the applicant’s unfair dismissal. There is no reference to any factual allegations that link any of the performance related criticisms to the applicant’s race, colour or ethnic origin.
7The failure of the applicant to attend the hearing is fatal to this Application. A noted above the applicant also chose not to file a Statement of Additional Facts. As I indicated to the respondents at the hearing, in considering their Request to Dismiss I would have called on the applicant to make submissions first, and in all likelihood lead some evidence related to the allegations as framed in the human rights complaint underlying the Application. It would only be at that point that I would entertain the submissions of the respondents on their Request to Dismiss.
8I am left to determine the respondents’ Request based solely on the allegations as set out in the complaint and they, if believed, would not allow the Tribunal to make a finding that the applicant’s right to be from discrimination in employment had been violated. As indicated there are no facts alleged in the complaint that link any of the performance related criticisms to the applicant’s race, colour or ethnic origin. In short there is no nexus between the actions complained of in the complaint and any prohibited ground of discrimination in the Code.
9The Application is dismissed.
Dated at Toronto, this 30th day of October, 2009
“Signed by”
David Muir
Vice-chair