Asefa v. Can-Am Logistics, 2010 HRTO 1531

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Meareg Asefa

Applicant

-and-

Can-Am Logistics Inc.

Respondent

A N D B E T W E E N:

Selamawit Berhe

Applicant

-and-

Can-Am Logistics Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 14, 2010

Citation: 2010 HRTO 1531

Indexed as: Asefa v. Can-Am Logistics

1This Interim Decision is to address the respondent’s request to consolidate two Applications made against the respondent in Tribunal Files 2009-03259-I and 2009-03261-I and the applicants’ request for disclosure of documentary evidence. The applicants in these files are spouses and both are employed by the respondent.

THE APPLICATIONS

File 2009-03259-I

2The applicant Asefa filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 19, 2009. This applicant alleges that the respondent discriminated and reprised against him on the basis of race, colour and sex. In essence, the applicant alleges that he was subjected to racial discrimination in the denial of employment advancement and training opportunities, as well as undue scrutiny of his attendance. Although the applicant cited the ground of sex, the applicant’s narrative does not provide any particulars with respect to this ground of alleged discrimination.

File 2009-03261-I

3The applicant Berhe also filed an Application with the Tribunal on August 19, 2009. This applicant alleges that the respondent discriminated and reprised against her on the basis of race, colour and sex. In essence, the applicant alleges that she was subjected to race and sex (pregnancy) discrimination in regards to denial of employment advancement and training opportunities, as well as undue scrutiny of her attendance.

RESPONSE

4The respondent denies the allegations of race and sex discrimination and asserts that both applicants exhibited frequent absenteeism during a similar time period. The respondent alleges that the applicants had been provided with fair employment advancement and training opportunities.

REQUEST TO CONSOLIDATE

5Separate one-day hearings in respect of each Application are currently scheduled for September 9, 2010.

6The respondent requests that the Applications be consolidated because they involve common questions of fact and law in that both allege race discrimination with respect to denial of promotion. The respondent points out that the applicants’ allegations arise out of similar circumstances (absenteeism) in regards to similar time periods. The respondent submits that it will be required to call the same witnesses and it is likely that the applicants will testify in each other’s case. The respondent argues that consolidation avoids the possibility of inconsistent findings of fact and credibility.

7The applicants object to having the Applications consolidated. The applicants claim that the nature of the Applications are different in that File 2009-03259-I alleges racial discrimination and File 2009-03261-I alleges pregnancy discrimination, in addition to racial discrimination. While the applicants assert that the evidence will be different in both cases, the applicants have not explained this point nor indicated which or how the evidence may be distinct.

DECISION

8In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

9It appears that all of the factors noted in Persaud present in favour of hearing the Applications together. Without predetermining the issue, it appears that there are common and overlapping facts and issues in the Applications. The parties, documents and witnesses will likely be the same in the hearing of both Applications. It also appears that that hearing the Applications together would not prolong or delay the process. As such, it would to be in the public interest to avoid a multiplicity of proceedings by hearing them together. Furthermore, there is no evidence that doing so will result in prejudice to any party.

10Having regard to all of these factors and considering the Tribunal’s mandate to resolve matters in a fair, just, and expeditious manner, I order that Tribunal files 2009-03259-I and 2009-03261-I be heard together.

11The applicants have requested production of various documentary materials. Pursuant to Rules 16 and 17 of the Tribunal’s Rules of Procedure, the deadline for producing arguably relevant documents is 21 days following the Notice of Hearing, and the deadline for filing documents and witness statements 45 days before the hearing. Requests for production are normally not addressed until the parties have complied with their disclosure obligations under the Tribunal’s Rules of Procedure. See: Krantz v. Ottawa Police Services, 2009 HRTO 787 and Polihronakos v. Mississauga (City), 2010 HRTO 1112. The Tribunal’s Rules of Procedure are available on its website, www.hrto.ca. Consequently, the applicants’ request is denied as premature. The applicants may file a new Request for production if necessary following the disclosure process under the Rules.

12I am not seized of this matter.