Fratiloiu v. Quality Safety Systems, 2011 HRTO 2006

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrian Fratiloiu

Applicant

-and-

Quality Safety Systems and Brad Hedderson

Respondents

Interim DECISION

Adjudicator: Naomi Overend

Date: November 4, 2011

Citation: 2011 HRTO 2006

Indexed as: Fratiloiu v. Quality Safety Systems

1The applicant filed this Application on February 1, 2010, alleging reprisal and discrimination in employment on the basis of creed, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The allegations concern events taking place throughout the period of the applicant’s employment from 2000 to January 2010.

2At the time they filed their Response, the respondents also filed a Request for Order During Proceedings (Form 10), asking that the Tribunal strike out those portions of the Application that were out of time and/or unrelated to the issue of freedom of religion, which formed the basis for the Application. The Applicant did not file a Response to the Request for Order (Form 11), but did file a Reply in which he factually responded to the respondents’ version of events, upon which the Request for Order was founded.

3No determination was made at that time on the Respondents’ Request for Order and the matter proceeded to mediation. The matter is now scheduled for hearing. The Tribunal issued a Case Assessment Direction (CAD) in which it asked the applicant for written submissions on the outstanding Request for Order. On October 28, 2011, the applicant sent in a document labeled “Case Assessment Directions – Objections,” which contain the requested written submissions.

Request to Dismiss

4The basis of the Request to strike is set out in paragraph 9 of the respondents’ Response:

It is submitted that there are a number of previous events and/or occurrences identified by the Applicant in his Application as support for his allegations that are quite clearly and absolutely unrelated to creed and/or religion. Consequently, it is submitted that these matters cannot be properly or fairly form part of the Applicant’s Complaint for the purposes of adjudication by the Tribunal in this instance. These matters include the following:

(a) the Applicant’s job opportunity with a separate and unrelated company/employer (i.e. Kautex) circa 2004;

(b) the events/circumstances referable to the employment of the Applicant’s wife by the Respondent Company circa 2004;

(c) the events/circumstances surrounding the change in the Applicant’s workload circa 2007; and,

(d) the allegation made by the Applicant that suggests that his health suffered as a result of the increase in his workload commencing in 2007.

It is submitted that these allegations are not only well beyond the one year time limit established pursuant to Section 3(1)(a) of the Code, but they are clearly irrelevant to the issue that is central to this Complaint as they have nothing at all to do with either the Applicant’s creed and/or religion.

5Section 34 states, in part:

(1) If a person believes that any of her 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.

6As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.

7The applicant submits generally that the allegations at issue in this Request to dismiss are part of a series of incidents, which continued up until the time that he filed his Application. That being the case, he asserts, there is no issue of delay. The applicant did not argue, in the alternative, that the delay was incurred in good faith.

8In addition, the respondent raises the issue of whether these allegations are within the jurisdiction of the Tribunal. The Tribunal derives its jurisdiction (power) to decide matters from the Code. The Tribunal has stated in numerous cases that it does not adjudicate general claims of unfairness or harassment. There must be a nexus between the allegation of unfairness and/or harassment and a ground under the Code (in this case creed). In the absence of such a nexus, no violation of the Code can be found.

9In light of the above statements of the law concerning delay and jurisdiction, I will deal with the allegations set out in the Request for Order to dismiss.

(a) The Kautex Offer

10In 2004 the applicant was apparently offered a job at another employer, which involved a significant increase in pay. He states in his Application that he spoke to the president of the respondent company, who persuaded him to stay with the respondent on the basis that he would be the next person to be promoted.

11On its face, it is difficult to see why this allegation is discriminatory treatment on the basis of creed. The applicant appears to be stating that his work was sufficiently valued that the president of the company persuaded him to stay instead of accept a more lucrative offer. Simply because the applicant believes he now suffered negative consequences from staying rather than leaving does not make the treatment discriminatory.

12Having said that, the applicant also alleges that he was denied promotions over the years as the result of his creed. The question of whether the applicant was promised a promotion in 2004, although not discrimination itself, may be relevant to the whether the applicant had a reasonable expectation that he would be promoted.

(b) The Applicant’s Wife’s Employment with the Company

13The Application contains allegations that the applicant’s wife was improperly not retained by the company in 2004. These allegations are not allegations concerning the applicant and are properly part of a separate Application. Indeed, the applicant’s wife filed a separate Application containing these allegations some months after the instant Application was filed, and that Application was dismissed for delay: 2010 HRTO 2380, upheld on reconsideration 2011 HRTO 360.

14The applicant continues to dispute the earlier Decisions of this Tribunal concerning his wife’s Application in his written submissions, but this is not the appropriate forum in which to address this perceived lack of fairness and/or legality. Accordingly, these allegations are dismissed.

(c) and (d) Increase in Workload

15The applicant alleges that when a co-worker was promoted in March 2007, the company assigned him that person’s work as well as his own. The applicant alleges that he did both sets of tasks until September 2009, which resulted in a depletion of his health.

16The applicant fails to make any link in his Application between the extra work and his creed and only does so in his submissions by asserting the following: “There are no other rational reasons to explain the Respondent’s behavior in dealing with the Applicant; the Respondent didn’t justify at all his illegal punishment against his employee.” It is not clear from the materials before me that, in fact, the applicant was being “punished,” but I will hear evidence on this allegation and make such determinations as are necessary at the Hearing in December 2011.

Further Direction

17In his written submissions, the applicant refers to a memorandum used during his mediation session. It is important to note that I do not (and should not) have access to this memorandum. He states that this memorandum mentions that he has “other proofs.” He states further:

To this, the Applicant still mentions that he has other proofs that the Respondent conducted not only illegal abuses against his employee but is also conducting illegal practices in the company business and that the Applicant may resort to them if necessary since the Tribunal doesn’t seem to want to stand up for their mission of righteousness in this case… [emphasis in original]

18As mentioned above, the Tribunal is not empowered to hear general allegations of unfairness or, for that matter, illegality. If the applicant has information relevant to his allegations of discrimination on the basis of creed, he has an obligation to disclose that in advance of the hearing pursuant to Rules 16 and 17. Otherwise, the Tribunal will not hear matters concerning “illegal abuses or practices.”

ORDER

19In sum, the Tribunal made the following orders/directions:

a. The portion of the Application that deals with the allegations of discrimination against the applicant’s wife are dismissed;

b. The Tribunal will allow the applicant to call evidence with respect to the remaining allegations with the caveat that such evidence must be related to his assertion that he was discriminated against on the basis of his creed; and

c. The applicant will not be permitted to call evidence at the hearing concerning allegations of “illegal abuses against employees” or “illegal practices” unless such evidence is related to his assertion that he was discriminated against on the basis of his creed.