Bourennani v. Kelly Services, 2010 CanLII 64532

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Farid Bourennani Applicant

-and-

Kelly Services Respondent

A N D B E T W E E N:

Farid Bourennani Applicant

-and-

IBM Canada Limited Respondent

INTERIM DECISION

Adjudicator: Caroline Rowan Date: November 5, 2010 Citation: 2009 HRTO 2214 Indexed as: Bourennani v. Kelly Services

WRITTEN SUBMISSIONS BY

IBM Canada Limited, Respondent ) Valerie A.E. Dyer, Counsel )

1These Applications were filed under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In its Case Assessment Direction dated May 6, 2010 (the “Direction”), the Tribunal questioned whether the underlying complaint filed with the Ontario Human Rights Commission (“Commission”) against IBM Canada Limited (“IBM”), apparently dated April 10, 2007, was “filed” with the Commission prior to June 30, 2008. The Tribunal noted that this question was raised by the statement made by IBM in its Response (TR-2) in support of its Request for early dismissal to the effect that the complaint against IBM apparently dated April 10, 2007 was never delivered to, nor served on, IBM by the Commission.

3The question of whether the underlying complaint against IBM was “filed” with the Commission prior to June 30, 2008 is material to the Tribunal’s jurisdiction to consider the Application filed under section 53(5) of the Code, since only complaints filed with the Commission prior to June 30, 2008 may be continued by filing a transition Application under section 53 of Code. After June 30, 2008, new complaints, now called Applications, must be made directly to the Tribunal under section 34 of the new Code.

4In its Direction, the Tribunal sought the assistance of the Commission with respect to determining the status of the IBM complaint and invited the Commission to make submissions on the issue of whether, in its view, the IBM complaint was filed with the Commission prior to June 30, 2008. The Commission subsequently provided the parties and the Tribunal with copies of the Commission’s files relating to the applicant’s complaints against both IBM and against Kelly Services. By correspondence dated June 2, 2010, counsel for the Commission indicated the Commission’s view that a complaint was filed with the Commission prior to June 30, 2008. The Tribunal then invited submissions from the parties on this issue in light of that letter and the material contained within the Commission’s files. The Tribunal has now received and reviewed the material contained in the Commission’s files and the parties’ submissions.

5The new Code significantly changed the system of enforcement of human rights in Ontario. The Commission continued to have authority to accept new complaints of discrimination until June 30, 2008, and continued to have responsibility to deal with those complaints until December 31, 2008. The relevant provisions of section 53 are set out below:

53. (1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an Application to the Tribunal with respect to the subject-matter of the complaint. (emphasis added)

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an Application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an Application made under subsections (3) and (5).

(8) 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.

6These transitional provisions of the Code set out a process for permitting former complainants to abandon their complaints filed with the Commission before June 30, 2008, the effective date, and to file a transition Application under section 53, if their original complaint was still in process at the Commission.

7In the present case, a review of the Commission’s files indicates that the applicant filed a complaint against Kelly Services and Jon Pangindian which was signed and dated October 11, 2006 (or November 10, 2006 depending on whether the date and month were reversed). In that complaint, the applicant referred to his assignment to work at IBM through his employment with Kelly Services and alleged discrimination in employment and in contract on the ground of disability.

8According to Commission staff notes dated March 15, 2007, the complaint went all the way to mediation at the Commission before it was recognized that neither respondent was ever served with the complaint because of an erroneous address. The Intake Officer’s notes to file further indicate that he had assessed that the applicant’s complaint reflected a complaint against both Kelly Services and IBM. In the circumstances, the Intake Officer recommended that the applicant file two separate complaints: one against Kelly Services and a second separate complaint against IBM.

9In its submissions, IBM suggests that it is clear that the Intake Officer’s memo to file dated March 15, 2007 has been amended at a later date. In this regard, IBM suggests that the last two sentences of the following memo to file dated March 15, 2007 were added at a later date:

I’ve decided to open a new complaint against IBM using the same complaint facts. Mr. Bourennani was employed at IBM through Kelly Services. The Complaint went all the way to Mediation before it was returned because neither of the above Respondents were ever served. I need to contact Mr. Bourennani to inform him of these developments.

10According to IBM’s submissions to the Tribunal, the last two sentences in this memo have clearly been added to this document and to the Commission’s database at a later date, since subsequent file notes clearly show that Kelly Services had not even been served as of March 15, 2007, and that the Kelly Services original complaint did not go to mediation until August 31, 2007.

11I cannot however agree with the suggestion that it is clear that this memo was subsequently amended. In my view, it is instead simply unclear what the Intake Officer meant when he said “the Complaint went all the way to mediation before it was returned”. He could, for example, have been referring to the fact that the complaint was assigned to a mediator and/or mediation section within the Commission before the complaint was returned to an Intake Officer and/or Intake section within the Commission’s organization. It is not, in any event, clear that the Intake Officer is referring to the mediation meeting subsequently set on August 31, 2007. He further acknowledges in that same memo to file that Kelly Services had not been served with the complaint as at March 15, 2007.

12That same day, the Intake Officer wrote to the applicant by letter dated March 15, 2007 to suggest that the applicant file a separate complaint against IBM. In his letter, he notes that, in the applicant’s original complaint against Kelly Services (01092006FDTE-6T8R84), the applicant had cited Kelly Services as the responding party and that the Commission will keep the integrity of this complaint. The Intake Officer then notes that the applicant had also cited IBM and that since they are two separate entities, the applicant has to file two separate complaints. The Intake Officer therefore sent the applicant a new form to be used to complete his new complaint against IBM and assigned a separate file number to that complaint (15032007EGRN-6ZBJFH). The Intake Officer then explained the process the applicant had to follow to complete a separate complaint against IBM and in particular noted that the applicant had to fill out the first page of the new complaint against IBM. He then gave the applicant the option to use the same other pages as in his original complaint against Kelly Services since the facts in both complaints were similar (using photocopied pages of the original complaint) unless the applicant wants to redo the other pages.

13The Commission’s IBM File (15032007EGRN-6ZBJFH) records a telephone conversation between the applicant to the Intake Officer on April 5, 2007, which indicates that the applicant received file EGRN-6ZBJFH against IBM and that the Intake Officer explained to the applicant how to go about filling it out. This notation is followed by a note to file made by the Intake Officer dated April 18, 2007, which indicates “Received EGRN-6ZBJFH” (i.e. the complaint against IBM) and that the Intake Officer must send it to translation before he can serve it. The notations in the file also state that the Intake Officer received the translation on May 1, 2007 and that he will now serve it.

14The Commission’s IBM file (15032007EGRN-6ZBJFH) contains page 1 of a complaint signed by the applicant and dated April 10, 2007, which lists the applicant’s name as the complainant and IBM and Jon Pangindian as respondents. That page is then followed by a type-written translation of the applicant’s original complaint against Kelly Services followed by copies of p. 2 to 5 of that original complaint, signed and dated October 11, 2006 and handwritten in French.

15The file also contains copies of three letters dated June 25, 2007 setting a mediation date of August 31, 2007: one addressed to the applicant, one to Jon Pangindian, On-Site Coordinator, IBM Canada Limited, and a third addressed to President, IBM Canada Limited. The letters refer to the following enclosures sent with it: Complaint, Mediation Agreement Form, Respondent’s Data Form and Service Guide. According to Commission counsel, the Commission’s practice at that time was to serve complaints at the same time that it set mediation dates.

16There is nothing in the file to indicate whether the complaint was ever successfully delivered to IBM as there is no clear indication that this letter and enclosures were received by IBM. The file however contains a mediation agreement between the applicant, IBM, and Jon Pangindian, signed by the applicant, Jon Pangindian, and Jean-Pierre Rubibi, and dated August 31, 2007 beside each signature. The signature and date beside the name Jon Pangindian is however stroked out.

17A report dated August 31, 2007 indicates that mediation was not attempted and recommends Investigation/Assignment as the next recommended process. The next activity in this file appears to have been on July 31, 2008 when the Commission sent the applicant a letter in reference to his complaint against IBM in Commission File No. EGRN-6ZBJFH. That letter notified the applicant of the changes to the Code and his options under the transitional provisions.

18In summary, it appears from a review of the material contained in the Commission’s files that the applicant originally filed a human rights complaint dated October 11, 2006 citing Kelly Services and Jon Pangindian as responding parties. His complaint referred to the fact that he had been working for IBM as a computer analyst but that his contract is with Kelly Services. In or about March 2007, when it came to light that none of the responding parties had been served with the complaint because of an erroneous address, Commission staff, rightly or wrongly, believed that the applicant sought to lodge a complaint against both IBM and Kelly Services. The Intake Officer therefore recommended to the applicant that two separate complaints be filed and suggested that the applicant need only complete a new page one of the complaint form and use photocopied pages of his original complaint against Kelly Services to create a new complaint against IBM.

19The applicant apparently accepted that suggestion and returned a completed page 1 listing IBM and Jon Pangindian as responding parties to this new complaint, dated April 10, 2007 and received by the Commission on or about April 18, 2007. Commission staff then processed that complaint by first sending its contents (being the photocopied pages) to translation and by purporting to serve it on the responding parties at the same time it set the matter down for mediation.

20In determining whether a complaint was “filed” with the Commission within the meaning of section 53 of the Code, the Tribunal has had regard to the Commission’s own practices and processes at the relevant time to determine if the complaint should be construed as having been “filed” with the Commission. In Cerra v. Thunder Bay Regional Health Sciences Centre, 2009 HRTO 1229 and in Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160, the Tribunal consequently determined that a complaint was not filed with the Commission prior to June 30, 2008 simply because a complaint was received and the Commission assigned a file number to it given the new approach adopted by the Commission to complaints filed near or at the June 30, 2008 deadline.

21As noted in Cerra, cited above, the Commission’s approach set out in its Internal Guide for Processing Complaints, which has been posted on the Commission’s website for public access since at least July 2007, refers to a complaint as having been considered “filed” only after the complainant has signed and dated it, and it has been received by the Commission in a form approved by the Commission.

22The Commission’s approach, however, changed near the end of June 2008 in anticipation of its changing mandate effective June 30, 2008. At that time, instead of serving complaints received by it at or near the end of June, the Commission sent a letter to the applicant indicating that the Commission was unlikely to be able to deal with the complaint. The Commission also advised the applicant to file an application directly with the Tribunal and that the file the applicant had initiated at the Commission had been closed. In these circumstances, the Tribunal determined that no complaint had in fact been filed with the Commission prior to June 30, 2008.

23In doing so, the Tribunal adopted the reasoning in Patterson, cited above, in which the Tribunal noted that regard must be had to the Commission’s practices and processes in effect at the relevant time in determining when a complaint was filed with the Commission. The Tribunal further found no policy reason for determining that a complaint had been filed within the meaning of section 53 of the Code where the complaint was not one which the Commission categorized as having been “filed” under its own practices and processes.

24The situation in the present case however differs in that a review of the Commission’s files indicates that the Commission had in fact categorized the applicant’s complaint against IBM as having been “filed” when the applicant returned to the Intake Officer a new page 1 of the complaint form listing IBM (which was signed by the applicant and dated April 10, 2007). The Commission accepted the photocopied pages from his original complaint dated October 11, 2006 as constituting the balance of his complaint despite the fact that that the applicant did not apparently re-sign and re-date those pages as the Intake Officer had suggested the applicant should do.

25IBM argues that there is no reliable evidence that the applicant submitted any complaint to IBM, other than page 1 of the 5 pages of the standard Complaint Form, prior to June 30, 2008. The notes in the Commission’s file however indicate that the Commission staff reviewed with the applicant its proposal that the applicant file a separate complaint against IBM using the photocopied pages from the original complaint against Kelly Services and a new page 1 of the Complaint Form listing IBM as a responding party. The applicant then submitted to the Commission a new signed page one of the Complaint Form listing IBM as a responding party. The Commission then processed the new complaint against IBM (after having the photocopied pages translated) as a completed complaint by purporting to serve it on the parties and to set it down for mediation on August 31, 2007 by letter to the parties dated June 25, 2007. The information in the file therefore suggests that the Commission treated the complaint against IBM as a completed complaint in a form acceptable to it by June 2007, at the latest. There is further no indication that the applicant ever took the position that the Commission was acting beyond the authority he had given to it when the Commission purported to deliver it to the parties and set it down for mediation.

26In all the circumstances, I am satisfied that the applicant’s new complaint against IBM was “filed” with the Commission prior to June 30, 2008 within the meaning of section 53 of the Code such that it may be considered a continued complaint within the meaning of section 53(5) of the Code.

27IBM’s request for early dismissal of the Application remains to be considered. Whether the Application against IBM should be dismissed on a preliminary basis on the ground that it was not served on IBM until years later, such that IBM is prejudiced in defending it or on the basis that the only substantive allegations raised in the Application are against Kelly Services and a Kelly Services employee, and not IBM, will be dealt with at a hearing.

28The Registrar-Transition will be in touch with the parties to schedule a date for the hearing of the remaining preliminary issues.

Dated at Toronto, this 5^th^ day of November, 2010.

”signed by”______________

Caroline Rowan

Member