Japal v. Massilly North America, 2010 HRTO 2203

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Japal Applicant

-and-

Massilly North America Inc., Sahadeo Persaud and Contract Staffing Inc. Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: November 3, 2010 Citation: 2010 HRTO 2203 Indexed as: Japal v. Massilly North America

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 January 14, 2010. She alleges workplace discrimination and harassment on the basis of sex, and sexual solicitation. The personal respondent and the corporate respondent, Massilly North America Inc. (“Massilly”) have filed separate Responses.

2This Interim Decision deals with two issues: the non-responsiveness of one of the corporate respondents; and a request for early dismissal by the personal respondent.

No Response

3The Application was made against only Massilly and the personal respondent. In Massilly’s Response, filed on May 25, 2010, it named an additional corporate respondent, Contract Staffing Inc. (“Contract Staffing”). The Tribunal issued a Notice of Application to Contract Staffing on June 21, 2010 requiring a Response within 35 days. In an Interim Decision, dated August 20, 2010, 2010 HRTO 1727, I ordered the Application to be delivered by regular mail and courier, and gave Contract Staffing seven days to file a Response. To date, Contract Staffing has not responded to the Application.

4According to Tribunal records, the Application was returned as undeliverable at the address provided for Contract Staffing, with the notation “moved”. In the absence of updated, accurate address information for the named respondent, it is impossible for the Tribunal to deliver the Application and require Contract Staffing to file a Response. It is the naming party’s responsibility to provide the Tribunal with complete and accurate service information for prospective respondents. The Tribunal does not assume responsibility for obtaining this information. An inability to locate a named respondent may result in the Application being discontinued as against that person. I am directing Massilly to provide the Tribunal with accurate contact information for Contract Staffing within two weeks of this decision.

Early Dismissal

5The personal respondent requests that the Application be dismissed because another proceeding has in whole or in part appropriately dealt with the substance of the Application within the meaning of section 45.1 of the Code. In support of this request, the personal respondent cites his success at trial on criminal charges that arose out of the same facts as this case. He filed a court document, dated April 20, 2010, that indicates a finding of “not guilty” and a “dismissal” of the charges.

6The respondent Massilly supports the request on the basis of the doctrine of abuse of process. The respondent relies on the Supreme Court of Canada’s ruling in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 777, which found that litigation duplication can violate the principles of “judicial economy, consistency, finality and the integrity of the administration of justice.” Massilly argues that proceeding with this Application would amount to improper relitigation of the same facts and issues.

7The applicant opposes the request, arguing that several key witnesses did not testify in the criminal proceeding and that the court’s conclusions are therefore not authoritative.

DECISION

8Under the Tribunal’s process, when a party requests early dismissal of an application on the basis that another proceeding has appropriately dealt with its substance, the requesting party must file a copy of the decision in the other proceeding. In this case, the personal respondent has filed a court document that contains information about the charge, the plea and the finding. A box indicating “not guilty” is checked, and the word “dismissed” is written on an adjacent line. The document bears a court clerk’s date stamp of April 20, 2010.

9Based on the information provided to the Tribunal, which does not include a transcript of any proceeding, it is unclear whether a trial occurred, what issues were considered, what evidence was received and what factual findings, if any, were made. I am, therefore, unable to conclude that the criminal proceedings appropriately dealt with the substance of the Application. On the basis of the information before me, I cannot grant the respondent’s request.

10Even if there were a clear record of a proceeding and decision, I am not persuaded that the CUPE case supports an early dismissal in this matter. CUPE involved a criminal conviction rather than an acquittal. This is a definitive distinction, in my view. The Ontario Court of Appeal, in Rizzo v. Hanover Insurance Co. (1993), 14 O.R. (3d) 89 (C.A.), held that “evidence of acquittal in a criminal trial is inadmissible in a subsequent civil trial as proof that the party did not commit the offence”. It appears that the personal respondent wishes to rely on his acquittal precisely for the purpose of proving his “innocence” (i.e., absence of liability) in this case. It would be contrary to Rizzo to permit acquittal evidence for that purpose.

11The Rizzo principle was recently affirmed in Polgrain Estate v. The Toronto East General Hospital, 2008 ONCA 427, where the Ontario Court of Appeal held that it is not an abuse of process to challenge, in a subsequent civil proceeding, findings made by a trial judge in the course of acquitting an accused. This Tribunal has applied Polgrain favourably to allow a party before this Tribunal to advance different facts than were found by a criminal trial judge in a related matter. See R.A. v. Toronto Police Services Board, 2009 HRTO 231.

12In considering whether the CUPE case barred the plaintiffs from questioning facts found by the criminal trial judge in the course of reaching a not guilty verdict, the Court in Polgrain stated at para. 45, that: “the reasons of the trial judge in acquitting [the accused] are not judicial findings that attract the same relitigation concerns as does the formal verdict”. The Court relied upon the following considerations, summarized by the Tribunal in R.A. to support differentiating between a conviction and an acquittal when applying the doctrine of abuse of process:

• No appeal could have been brought by the Crown or the estate from the reasons (as opposed to the verdict) of the trial judge. Only the Crown could have appealed, and it could have done so only if the findings of fact tainted the verdict, and only on a question of law. Unlike an accused found guilty, therefore, the plaintiffs could not have challenged the reasons. (paras. 31 – 32)

• The only judicial finding in an acquittal is that a case has not been proven beyond a reasonable doubt and to give legal significance to other aspects of the decision would confuse the role of the criminal and civil courts. (paras. 33 and 36)

• The law does not recognize a verdict of factual innocence. (para. 35)

• Trial judges should not be discouraged by the application of the abuse of process doctrine from expressing their reasons for acquittal in the manner they see fit, and “that may give the parties solace, satisfaction or even vindication”. (para. 37)

13Even if the Tribunal had been provided with more comprehensive information regarding the criminal proceedings, based on Rizzo, affirmed by Polgrain, the personal respondent’s acquittal is not determinative of the issues raised in this case. The criminal proceeding, therefore, has not appropriately dealt with the substance of the Application. It would not amount to an abuse of process to allow the Application to proceed to a hearing.

ORDER

14The Tribunal orders as follows:

(I) The request to dismiss is refused.

(II) The respondent Massilly shall have two weeks to provide accurate contact information for Contract Staffing to the Tribunal. Failure to do so may result in the Tribunal removing Contract Staffing as a named respondent.