HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamod Rijal
Applicant
-and-
Benny Manasseri and Joe Sammut
Respondents
INTERIM DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Rijal v. Manasseri
Written Submissions By
Mohamod Rijal, Applicant ) Glen Morrison, Representative
Benny Manasseri and ) Michael D. Failes, Counsel
Joe Sammut, Respondents )
1In September 2004, the applicant made a complaint to the Ontario Human Rights Commission (the “Commission”) claiming discrimination in employment based on colour, race, and ethnic origin. The applicant alleges that he lost his employment with the corporate respondent, Distinctive Designs Furniture Inc. (“Distinctive”), as a result of this discrimination. His complaint to the Commission was abandoned upon filing this Application to the Human Rights Tribunal of Ontario (the “Tribunal”) under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2I previously determined that there is no valid claim as against the corporate respondent, but that the Application could continue against the individual respondents Benny Manasseri and Joe Sammut, see Rijal v. Distinctive Designs Furniture, 2009 HRTO 1337. Those respondents now argue that the Application against them should be dismissed for delay.
3Section 34 of the Code provides as follows:
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 section 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.
4The Tribunal has confirmed that the statutory language makes it clear that section 34 applies to applications made under section 53(3) of the Code; Savage v. Toronto Transit Commission, 2010 HRTO 1360.
5As the Tribunal said in Pakarian v. Chen, 2010 HRTO 457:
It is furthermore important to note that the request for early dismissal was brought by the respondents, and the onus therefore rests with them to establish the fact of delay. Only then does the onus shift to the applicant to demonstrate good faith.
6In order to determine whether there is delay on its face one must first establish the chronology of the alleged events. In this case, it is most useful to use a reverse chronology from September 24, 2004, the date of the complaint to the Ontario Human Rights Commission. The following, in reverse order, are the allegations (a) to (l) as set out in the original complaint:
(l) June 3, 2004, employment terminated.
(k) April 2, 2004, the respondent, Mr. Manassari, stated to a co-worker, “The black book is still here while looking at me.” He turned to me and said, “Everything ok Mr. Black book?.
(j) March 3, 2004, Mr. Manassari came to me and said “Look at the black box, you are big boss, president, executive, supervisor.”
(i) January 5, 2004, someone had placed a garbage bin on the applicant’s desk.
(h) November 5, 2003, a co-worker of the applicant made a mistake and printed some tickets. Mr. Sammut allegedly stated to the applicant, “you fucking black wall, black box don’t you understand anything, why don’t you go back to the place you came from?”
(g) October 21, 2003, Mr. Sammut told allegedly told the applicant that “I am talking to a black wall, why are some styles missing?”
(f) September 10, 2003, Mr. Sammut is alleged to have said to the applicant, “You idiot your stupid numbers are not working; you bold gay black box, tell me right now your stupid numbers.”
(e) June 18, 2003, Mr. Sammut called the applicant and said, “Do not talk nor ask questions for these people you fucking idiot, otherwise you will go back from where you came from.”
(c) June 4, 2003, Mr. Manassari stopped at a co-worker’s desk and said, “I don’t like brother to be here.” The next day Mr. Manasseri reduced my work space.
Decision
5The allegations (g) to (l) against the respondents Sammut and Manassari occurred within the 12-month limitation and shall proceed. Furthermore, I am satisfied, having read the complaint and the submissions that allegations (c), (e), and (f) can be construed as a series of incidents and shall proceed to a hearing.
6Allegation (b) in which the applicant alleges that:
During my employment, I was subjected to name calling by approximately seven white staff members. The name-calling consisted of: “monkey, black box, black angus, shadow, dust and slave.” This created a poisoned environment for me.
is a general allegation and does not specify any actions on the part of the two respondents. However, it does provide context and background to the specific allegations against the respondents.
7The Application shall proceed to an oral hearing as against the respondents Sammut and Manassari on allegations b, c, e, f, g, h, i, j, k, l and m. Allegation d is an allegation against Jim Moore which I had previously dismissed
Dated at Toronto this 16th day of September, 2010.
“Signed by”
Andrew M. Diamond
Member