Zeamanuel v. Avcan Management Inc., 2010 HRTO 1721

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gessesse Zeamanuel Applicant

-and-

Avcan Management Inc. and Mike Imseis Respondents

DECISION

Adjudicator: Mark Hart Date: August 19, 2010 Citation: 2010 HRTO 1721 Indexed as: Zeamanuel v. Avcan Management

APPEARANCES BY

Gessesse Zeamanuel, Applicant ) Self-represented Avcan Management Inc. and Mike Imseis, Respondents ) Matthew Valitutti, Counsel

1This is an Application dated May 12, 2009 and filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission (the “Commission”) on November 14, 2007.

2The applicant alleges that he experienced discrimination in employment because of his race, colour, ethnic origin and place of origin, contrary to ss. 5 and 9 of the Code. The applicant was employed as a superintendent at certain rental apartment buildings operated by the respondent company, and he alleges harassment and mistreatment because of his race and colour by the personal respondent who was the Property Manager, which the applicant alleges ultimately caused him to leave his employment with the respondent company.

3A preliminary hearing in this matter took place on August 18, 2010 to determine the issue raised by the respondents that the Application should be dismissed pursuant to s. 45.1 of the Code, on the basis of the decision of the Ontario Labour Relations Board (“OLRB”), dated February 5, 2010.

4In keeping with the expeditious manner in which s. 53 applications are to be conducted, at the conclusion of the hearing on August 18, 2010, I issued the following oral decision.

1. This a preliminary request by the respondents to dismiss the Application pursuant to s. 45.1 of the Code as a result of a decision of the OLRB, dated February 5, 2010.

2. Section 45.1 of the Code provides that “the Tribunal may dismiss an Application . . . if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.

3. The Tribunal has held that it is helpful to consider s. 45.1 in two parts: (1) whether there was another “proceeding”; and (2) if so, whether it has “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: see Daginwala v. SCM Supply Chain Management, 2010 HRTO 205.

4. There is no question that a hearing before the OLRB is a proceeding within the meaning of s. 45.1 of the Code.

5. There also is no question that the Application before me arises out of the same facts that provided the basis for the OLRB proceeding. The factual circumstances giving rise to both proceedings relate to the applicant’s employment with the respondent company, how he was treated while he worked there, and his decision to leave this employment.

6. The real issue before me is whether the issues addressed in the OLRB decision are substantially the same as the issues before this Tribunal. Before the OLRB, one of the issues was whether the applicant had been constructively dismissed because of how he was treated by his employer, and in particular by the personal respondent to the Application before this Tribunal. As framed by the OLRB, the applicant claimed “that he was forced to quit because of the harassment and verbal abuse he suffered working under the supervision of the Property Manager”.

7. In the Application before this Tribunal, one of the issues raised is that the applicant experienced harassment and other mistreatment by the personal respondent because of his race, colour, ethnic origin and place of origin, that caused him to decide that he could no longer continue to be employed by the respondent company. In my view, with the exception of the characterization in the Application before this Tribunal that the alleged harassment and mistreatment were because of his race, this is substantially the same issue as was addressed before the OLRB.

8. In his submissions before me, the applicant has stated that he was told by the OLRB Vice-Chair who conducted the hearing that she did not want to hear about his human rights complaint. Nonetheless, the applicant was invited to provide whatever evidence he had about his factual allegations of harassment, abuse and mistreatment, and this evidence is summarized and reviewed in the OLRB decision. In his submissions before me, the applicant acknowledged that before the OLRB he had the opportunity to provide evidence regarding all of the same factual allegations of harassment and mistreatment that he intended to raise at the hearing before this Tribunal.

9. While the OLRB did not address whether the factual allegations of harassment, abuse and mistreatment occurred because of the applicant’s race, colour, ethnic origin or place of origin, the OLRB Vice-Chair did expressly address whether the factual allegations themselves were supported by the evidence. Based upon her assessment of the credibility of the witnesses who testified before her, she determined that the applicant’s allegations were not supported by cogent evidence and lacked particulars, such that she was unable to make a finding that the applicant was the victim of abuse.

10. The issue of whether the applicant experienced harassment and mistreatment that was addressed by the OLRB is precisely the same issue that I would need to determine if I allowed this hearing to proceed. I would only need to consider whether the harassment or mistreatment was because of the applicant’s race, colour, ethnic origin or place of origin, if I found that the factual allegations of harassment and mistreatment in fact were supported by the evidence. This primary or underlying factual issue is the same issue as was before the OLRB, and the determination by the OLRB that the factual allegations of harassment and abuse were not supported by the evidence removes the factual underpinning that the applicant requires to support his human rights claim.

11. The Application also includes an allegation that the applicant was denied a transfer from the Roehampton building to the Redpath building because a letter was sent by one of the tenants at the Redpath building objecting to him becoming superintendent because he is Black. The applicant stated before me that he did not provide evidence about this letter before the OLRB because of an admonition from the Vice-Chair that she didn’t want to hear about his human rights complaint.

12. However, from the OLRB decision, the issue of the applicant’s request for transfer was expressly dealt with by the Vice-Chair, and an express finding was made that management made a decision to keep the applicant as the superintendent of the Roehampton building because of the excellent relationship he had with the tenants of that building. Once again, the reason for the respondents’ refusal to transfer the applicant to the Redpath building is the same issue that would be before me at the hearing in this matter. The respondents gave evidence about their reason for refusing the transfer request and the same evidence would be given before me. In order for me to make a finding in the applicant’s favour, I would need to reject the evidence of the respondents that was accepted and relied upon by the OLRB, and find instead that an objection raised by a tenant to the applicant’s race and colour was a factor in this decision.

13. There appears to be no dispute between the parties that the applicant did not give evidence before the OLRB about the alleged letter from the Redpath tenant. I accept that the applicant may have been confused and thought that he was not allowed to provide evidence about the letter before the OLRB. However, the denial of the transfer was clearly raised by the applicant as an issue before the OLRB and an express factual finding was made on this issue that is adverse to the applicant. I would be called upon to make a factual finding in this proceeding on the same factual issue as to why the applicant was denied the transfer. Accordingly, I find that this issue before me is again substantially the same as the issue before the OLRB.

14. Finally, I need to address the question of whether the issues raised in the Application before this Tribunal were appropriately dealt with by the OLRB. The OLRB held an oral hearing over the course of two days, at which the parties were given full opportunity to present evidence and witnesses. Four witnesses testified over the course of the hearing. The Vice-Chair in her decision reviewed the evidence before her, and made her factual findings on the basis of her assessment of the evidence that she heard.

15. It is not my role under s. 45.1 of the Code to decide whether or not I agree with the OLRB’s findings. Without hearing all of the evidence, I would have no proper basis to do that. Rather, my function is to assess whether the OLRB conducted a fair process whereby all parties had an opportunity to present their case. I find that it did.

16. The applicant takes issue with certain factual findings made by the OLRB, and states before me that the Vice-Chair misapprehended his evidence. However, even if I were to accept the applicant’s evidence as he stated it before me, this evidence would not impair the basis for the central factual finding that the applicant failed to provide cogent evidence and particulars to support his allegation of harassment and abuse.

17. I appreciate that the applicant disagrees with the OLRB decision. However, the fact that he disagrees with the result before the OLRB is not a sufficient or proper basis to allow his Application to proceed before this Tribunal, to hear the same evidence from the same witnesses arising out of the same factual circumstances and raising the same factual issues. The applicant already has been given one opportunity to address his allegations before the OLRB, and it would be contrary to the principles underlying s. 45.1 of the Code to allow him to have a second opportunity to go over the same ground before this Tribunal.

5As a result, the Application is dismissed.