Gorgani v. Sybase Canada Limited, 2011 HRTO 1204

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kouros Gorgani

Applicant

-and-

Sybase Canada Limited

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: June 23, 2011

Citation: 2011 HRTO 1204

Indexed as: Gorgani v. Sybase Canada Limited

Written submissions

Kouros Gorgani, Applicant ) John R. Evans, Counsel

Sybase Canada Limited, Respondent ) Richard Charney, Counsel

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in employment. He also alleges reprisal or threat of reprisal.

2The Tribunal held a hearing on April 12, 13, and 14, 2011. I heard evidence from the applicant and from his treating physician.

3At the close of the day on April 13, 2011, I advised the parties that I did not, at this stage of the proceedings, wish to hear evidence from the respondent. I advised the parties that, in my view, these was a serious issue as to whether the applicant had made out a prima facie case of discrimination and, in particular, whether:

a. there is medical evidence to support his absence from work after March 9, 2009; and

b. the applicant has established a connection between his dismissal and a prohibited ground of discrimination under the Code.

4On April 14, 2011, co-counsel for the respondent concluded her cross-examination of the applicant and the applicant’s counsel conducted a brief re-examination. The parties asked for an adjournment in order to prepare submissions on the issues identified by the Tribunal. The adjournment request was granted.

5A further hearing date was scheduled for July 14, 2011. The parties were to make oral submissions regarding the issues identified in paragraph 3, above.

6On June 9, 2011, the applicant filed a Request to Withdraw an Application (“Request”).

7On June 10, 2011, the respondent filed a Response to the Request. The respondent consents to the Request, provided the following conditions are met and incorporated into the Tribunal’s order:

a. the applicant undertakes that no civil action has been issued or will be issued related to his employment or the cessation thereof;

b. if such a civil action has been commenced, the applicant undertakes to ensure that it is withdrawn, without costs and with prejudice; and

c. the applicant’s claim in Court File No. CV-10-413605 (which deals solely with the applicant’s entitlement to disability benefits) will not be expanded to include any additional allegations arising out of the applicant’s employment and the cessation thereof.

8The respondent argues that absent such conditions, the applicant could “forum shop” and might attempt to raise the issues contained in the Application in a civil action. It argues that the time, expense, and resources already devoted to the Application are such that it would be a gross misuse of the legal system to permit a withdrawal without ensuring that the applicant cannot file a civil action based on the same facts. Finally, the respondent argues that a withdrawal without conditions would circumvent the principle of res judicata and amount to a violation of the principles of natural justice.

9If the above-noted conditions are not incorporated into the Tribunal’s order, the respondent argues that the Request should be denied and the Application should proceed.

10The applicant objects to the conditions proposed by the respondent. He states that he has, in fact, begun a civil suit seeking remedies for wrongful dismissal. He has filed with the Tribunal and provided to the respondent a copy of the statement of claim filed in Court File No. 1394/11 (“Statement of Claim”). The Statement of Claim was issued in March 2011, but has not yet been served.

11In the Statement of Claim, the applicant alleges wrongful dismissal. The allegations are grounded in the same facts as the Application. In the Statement of Claim, however, the applicant is not seeking damages for breach of the Code pursuant to section 46.1(1).

12He argues that the Application ought to be withdrawn without terms and that, to the extent that the respondent objects to the civil matter proceeding (because of the doctrine of abuse of process, principles of natural justice, or res judicata), these issues ought to be raised before the civil court.

13The respondent filed further written materials once it had an opportunity to review the Statement of Claim. It argues that the Statement of Claim and the Application raise the same fundamental issue: whether or not the applicant was disabled when his employment was terminated. According to the respondent, the allegations of wrongful dismissal hinge on a finding that the applicant was disabled at the material time. The applicant has presented his evidence to the Tribunal in this regard, and the Tribunal has scheduled a further day of hearing in order to receive submissions and ultimately determine the issue. The respondent argues that, in seeking a withdrawal without terms at this stage of the proceeding, the applicant is attempting to prevent the Tribunal from determining an issue that he will then raise in a civil court.

ANALYSIS

14Rule 10.5 of the Tribunal’s Rules of Procedure states:

Where a Response to the Application has already been filed, an Application may be withdrawn only with the permission of the Tribunal and upon such terms as the Tribunal may determine.

15This Application has taken up considerable Tribunal time and resources. It may be that it would be an abuse of process for the applicant to pursue the Statement of Claim after withdrawing the Application in the circumstances. There may or may not be other reasons why the civil matter ought not to proceed. However, in my view, that is not for me to decide.

16The Tribunal’s powers under the Code and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, relate to its own proceedings. However, the conditions requested by the respondent go beyond the Tribunal’s own processes and seek to set parameters over matters that are before the civil courts. For this reason, I decline to impose the conditions requested by the Respondent.

17I have carefully considered whether it would be appropriate to deny the Request and proceed with oral submissions on July 14, 2011. However, in the circumstances, I do not feel that this would be the most fair, just, expeditious manner of proceeding. In any event, it is not clear to me that doing so would put an end to the ongoing litigation between the parties.

18Accordingly, the applicant’s Request is accepted and the Application is withdrawn without terms.