Sadegheadeh v. GESCO, 2009 HRTO 2060

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sam Sadegheadeh Applicant

-and-

GESCO Limited Partnership (Shnier) and Elaine MacIsaac Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta Date: November 30, 2009 Citation: 2009 HRTO 2060 Indexed as: Sadegheadeh v. GESCO

1This is an Application filed on March 24, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he was subject to discrimination and reprisal in employment on the grounds of ancestry, place of origin and disability. He has named GESCO Limited Partnership (Schneir) and Elaine MacIsaac as respondents.

2The respondents filed a Response on July 15, 2009. In the intervening period, the applicant’s employment was terminated. The Response addresses the reasons for the termination as well as the other issues raised by the applicant in his Application.

3On September 11, 2009, the applicant filed a Request for Order During Proceedings pursuant to Rule 19 of the Tribunal’s Rules of Procedure seeking to amend his Application. Attached to this Request is part of an Application document in which he refers to additional incidents of discipline and the termination of his employment.

4In one of the documents attached to the Request, the applicant refers to an employee of the corporate respondent, Andrew Midwinter, as a respondent. However, it is not clear that he intends to add Mr. Midwinter as a personal respondent as there is no contact information for him and the applicant does not appear to have made any attempts to serve him with any documents.

5In addition, some of the documents presented along with the Request refer to Elaine MacIsaac as the contact person for the corporate respondent rather than a personal respondent. Again, it is not clear whether the applicant intends to seek to remove Ms. MacIsaac as a personal respondent and proceed only against GESCO.

6The Tribunal has received a Form 11 in response to the applicant’s Request for Order. The respondents seek an order denying the request to amend the Application. They present a number of arguments in support of their position, specifically that the applicant’s request is unclear, that it constitutes a new complaint, that the respondents are prejudiced by the request and finally that the termination has resulted in a grievance being filed, which is currently proceeding to arbitration, and the applicant should not be able to pursue parallel proceedings.

7The Tribunal’s Rules and processes are designed to ensure the fair, just and expeditious determination of the merits of matters before it. Instead of filing a separate Application to address the termination of his employment, which occurred shortly after his Application was filed, the applicant has sought to amend the Application already before the Tribunal. Given the circumstances, including the fact that the termination occurred between the filing of the Application and Response and given the apparent overlap between the allegations in the two Application documents, the applicant’s request to amend his Application is granted.

8Andrew Midwinter will not be added as a personal respondent as it is not clear that the applicant intended to do so.

9There is sufficient detail in the documents attached to the Request for the respondents to determine whether they wish to amend their Response. The respondents are directed to file any amended Response within three weeks of this Interim Decision.

10Given the ongoing grievance proceeding to arbitration before Arbitrator Ross Kennedy, the Tribunal wishes to receive submissions from the parties about whether the Application should be deferred pending the completion of the arbitration process. Whether or not the respondents file an amended Response, they are directed to provide submissions on deferral of the Application, within 35 days of this Interim Decision. Further, the Tribunal requests that it provide submissions on whether Elaine MacIsaac should be removed as a party to these proceedings.

11Within two weeks of the respondent’s submissions, the applicant is directed to file a Reply that provides his submissions on the question of deferral of the amended Application, as well as on whether the Application should proceed against the personal respondent, Elaine MacIsaac.

12I am not seized.