Musoni v. Logitek Technology Ltd., 2010 HRTO 1492

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bernard Musoni

Applicant

-and-

Logitek Technology Ltd., Larry Detlor, Latiz Qureshi, Mateen Zubairi and Michael Lalande

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: July 8, 2010

Citation: 2010 HRTO 1492

Indexed as: Musoni v. Logiteck Technology

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), on July 20, 2009, alleging discrimination in employment on the basis of record of offences.

REQUEST FOR EARLY DISMISSAL

Previous Complaint

2In his Application, the applicant indicates that he filed a Complaint against the organizational respondent with the Ontario Human Rights Commission (the "Commission"). At the time, he did not cite record of offences as a ground of discrimination in his Complaint. He submits that record of offences emerged as a factor upon receipt of the respondent's reply. He approached Commission staff to amend his Complaint to add record of offences as a ground, but was not able to because the Commission had already issued him an "opt out" letter to abandon his Complaint and file a transition application with the Tribunal. He submits that the Tribunal "has as its rule under 53(3) and 53(5) not to amend a complaint that is continued", therefore, he did not get an opportunity to cite record of offences and his Transition Application proceeded without record of offences cited as a ground of discrimination.

3In response, the respondents made a Request for Early Dismissal of the Application, submitting that the applicant filed a Complaint with the Commission based on the identical facts as this Application. Section 53(8) of the Code provides as follows:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

Abuse of process, res judicata and estoppel

4The organizational respondent also submits that the applicant is attempting to relitigate the same claims of discrimination which were decided by the Tribunal in a Case Resolution Conference Decision, 2009 HRTO 236, reconsideration refused, 2009 HRTO 590. The respondent submits that, as a result of the Tribunal dismissing the Transition Application, and refusing reconsideration of that decision, the present Application is res judicata, should be dismissed as an abuse of process, and the applicant is estopped from relitigating the same issues.

Section 45.1

5The respondents also submit that the Application should be dismissed in accordance with section 45.1 of the Code, which 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.

Record of offences

6Although the respondents submit that the applicant's Complaint filed with the Commission included the ground of record of offences, from a review of the parties' materials filed with the Tribunal, it appears that record of offences was not included as a ground in the applicant's Complaint with the Commission.

7The respondents also submit, however, that the applicant alleges discrimination on the basis of record of offences in relation to a peace bond, which does not create an offence and does not result in a conviction. Therefore, it cannot be a subject of the record of offences protection in the Code. The respondents also submit that the applicant previously submitted a copy of his record provided by the Canadian Police Information Centre to the Tribunal and it shows "no convictions". The respondents submit that, since the applicant was never convicted of any offence, he could not have been discriminated against on the basis of record of offences.

8In his Response to the respondents' Request for Early Dismissal, the applicant submits that he believes his employer discriminated against him based on "false information of record of offence." He submits that the fact that he showed that he had a peace bond record, not a record of offense, does not prove that there was no illegal discrimination. He submits that there is evidence to show that the respondents believed he had a record of offense, and harassed him and terminated his employment based on that wrong belief; however, the applicant does not describe the evidence. He also alleges in his Application that the organizational respondent terminated his employment based on the assumption that he had been convicted and not pardoned for an offence under federal law.

9"Record of offences" is specifically defined in section 10 of the Code as follows:

"record of offences" means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

10It is not clear if the definition of "record of offences" applies to the facts of this Application and if the Tribunal, therefore, has jurisdiction over this Application. It is also not clear if the applicant's allegations, if accepted as true, could establish a prima facie case of discrimination based on record of offences.

DELAY

11It also appears that the last alleged incident of discrimination occurred on March 6, 2008, more than sixteen months before the Application was filed.

12Section 34 of the Code provides:

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 subsection 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.

13The Tribunal will not deal with an application filed more than a year after the incident, or a last incident in a series, unless it is satisfied that:

a. the delay was incurred in good faith; and

b. no substantial prejudice will result to any person affected by the delay.

FURTHER DIRECTIONS

14In the circumstances, the Tribunal determines that it is appropriate to hold a one-day hearing to address the following preliminary issues raised by the Application:

(i) whether the Application is barred by virtue of section 53(8) of the Code;

(ii) whether the Application should be dismissed, in whole or in part, because another proceeding has appropriately dealt with the substance of the Application;

(iii) whether the Application should be dismissed based on the doctrines of res judicata, estoppel and/or abuse of process;

(iv) whether the applicant has a "record of offences" within the meaning of the Code, and is therefore within the jurisdiction of the Tribunal;

(v) whether or not the allegations in the Application, if accepted as true, could establish a prima facie case of discrimination based on the ground of record of offences within the meaning of the Code;

(vi) whether or not the Application should be dismissed for delay within the meaning of section 34 of the Code, including whether or not the delay was incurred in good faith and whether or not substantial prejudice will result to any person affected by the delay.

15If any party wishes to rely on additional written materials (including written submissions, documents or case law) or facts at the hearing, they are directed to deliver this material to each other and the Tribunal by no later than two weeks before the date of the hearing.

16I am not seized of this matter.