Shah Islam v. Geoffrey Ball, Darryl Hogan and Barbara Workum, 2009 HRTO 2164

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shah Islam

Applicant

-and-

Geoffrey Ball, Darryl Hogan and Barbara Workum

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 14, 2009

Citation: 2009 HRTO 2164

Indexed as: Islam v. Ball

WRITTEN SUBMISSIONS BY

Shah Islam, Applicant ) On his own behalf,

Geoffrey Ball and Darryl Hogan, ) Barbara Workum, Respondents ) representative

Barbara Workum, Respondent ) On her own behalf

Decision

1This Interim Decision addresses the respondents’ Request for an Order during Proceeding seeking the dismissal of the Application pursuant to s. 45.1 of the Ontario Human Rights Code (the “Code”) on the basis that the substance of the Application has been appropriately dealt with by decisions under the Employment Insurance Act. There is also a Request by the applicant to add parties. I will also make further directions for the orderly conduct of this proceeding.

2The Application in this matter was filed on June 25, 2009. It relates to a complaint filed with the Ontario Human Rights Commission on November 11, 2007 alleging discrimination in employment on basis of race, colour, creed, place of origin and sexual orientation.

3The applicant was initially hired to work at J. Ennis Fabrics Ltd. through a temporary agency from February to April 2006. He was offered a full-time position in April 2006. The parties agree that there were no problems early in the employment relationship. The corporate respondent is not a party to the Application.

4The applicant alleges he was subjected to racial discrimination between December 2006 and June 2007. He alleges that persons in the workplace repeatedly directed racial slurs at him or comments implying that he was gay and that the supervisor did not take any action to stop it. He asserts he was dismissed in July 2007.

5The respondents are Geoffrey Ball, Distribution Centre Manager, Darryl Hogan, the assistant Distribution Centre Manger and Barbara Workum. They assert that in May 2007, a female employee brought a formal harassment complaint against the applicant. Following an internal investigation, the applicant agreed to limit his contact with the employee who complained and signed an agreement to that effect. One of the terms was the parties would keep the matters in strict confidence.

6On July 4, 2007, the female employee advised the employer that the applicant was speaking with a colleague to try to get the female employee to meet with the applicant outside the workplace. After this assertion was confirmed in writing, they terminated the applicant’s employment.

7The female employee brought a charge of criminal harassment against the applicant in September 2009 resulting in a conditional discharge following two years probation. The court documents establishing these facts have not been submitted.

8The applicant also sought benefits under the Employment Insurance Act in July 2007. The Employment Insurance Commission determined that the claimant had lost his employment due to his own misconduct and imposed an indefinite disqualification effective July 8, 2007. The claimant appealed the Commission’s decision to a Board of Referees (the “Board”). He appeared in person before the Board. The Board found the written documentation provided by the employer was both credible and well founded. The Board found the applicant’s evidence lacked coherence and any measure of reliability. The Board concluded that the applicant had breached the employer’s harassment policy and that this misconduct caused his dismissal.

9The applicant appealed the Board’s decision to an Umpire and a further hearing was held on September 29, 2009. In his written decision dated October 2, 2009, the Umpire noted that the applicant continued to deny any harassment of his coworkers and at the same time brought with him his Probation Order which he received as a result of his conviction for Criminal Harassment on September 18, 2009. The Umpire’s authority is limited to reviewing the Board decision to ensure that it complied with procedural fairness and the findings were based on the evidence before it. The Umpire dismissed the applicant’s appeal.

Request to Dismiss under Section 45.1

10Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

11The issue for this Tribunal is whether another proceeding has appropriately dealt with the substance of all or part of the Application, such that all or part of the Application should be dismissed.

12It is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with” the substance of the application. With regard to the second issue, the Tribunal may consider whether the application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding.

Is the Previous Process a Proceeding within the Meaning of Section 45.1?

13I find that the hearing process of the Board of Referees and the Umpire are the Employment Insurance Act are proceedings within the meaning of section. 45.1.

Did the Previous Proceeding Appropriately Deal with the Substance of the Application?

Does the Application Raise the Same, or Substantially the Same, Facts and Issues?

14The issue before the Board was whether the applicant had engaged in misconduct such as to disentitle him to benefits under the Employment Insurance Act. While this is not the identical issue raised by the complaint, it is substantially the same issue raised by the applicant in the human rights Application. The respondents to the human rights Application made the same response to the Board, that the applicant was terminated for misconduct, specially, harassment.

Was the substance of the Application “appropriately dealt with” in the other proceeding?

15The Board heard the applicant’s evidence and reviewed the documentation submitted by both parties. The Board concluded that the applicant engaged in misconduct and that was the reason for the termination.

16Accordingly, I conclude that the applicant cannot challenge the misconduct aspect of the termination in the human rights Application. However, it remains open to him to try to establish that despite the misconduct, racial discrimination nonetheless was a factor in the decision to dismiss him.

17The Application also contains serious and detailed allegations of harassment on the basis of race and sexual orientation. No proceeding has dealt with those allegations and they are not dismissed.

Addition of Parties

18The applicant seeks to add Jim Ennis and a former female colleague as respondents. The harassment complaint does not contain any allegations against these persons and it is not appropriate to add them to the proceeding.

Case Management

19The applicant has faxed extremely lengthy documents to the Tribunal. On one occasion a total of 243 pages were faxed. The respondents have asked the Tribunal to direct the applicant to cease sending material by fax.

20The Tribunal hereby directs the applicant to cease sending documents and submissions by fax to the respondents. Further, the Tribunal will not accept a document over 20 pages by fax from the applicant. Such documents must be delivered in hard copy, with two copies provided to the Tribunal.

21The applicant is directed to re-file the material previously sent by fax since November 30, 2009, as this material was so jumbled by the faxing process that the Tribunal cannot process it in this fashion.

22The Registrar-Transition will contact the parties to schedule a hearing to hear the harassment portion of the Application.