Nuur v. Chubb Edwards a U.T.C., Fire, Security and Climate Company, 2012 HRTO 1312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Halima Nuur

Applicant

-and-

Chubb Edwards a U.T.C., Fire, Security and Climate Company, Tina Tackore, Rose Chunara and Cathie Hutchinson

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 3, 2012

Citation: 2012 HRTO 1312

Indexed as: Nuur v. Chubb Edwards a U.T.C., Fire, Security and Climate Company

WRITTEN SUBMISSIONS

Arcelor-Mital Dofasco, Applicant ) Marci Channer, Representative

Chubb Edwards a U.T.C., Fire, ) Kristin Taylor, Counsel Security and Climate Company, ) Tina Tackore, Rose Chunara, and ) Cathie Hutchinson )

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, on April 25, 2012, alleging discrimination with respect to employment on the basis of race, ancestry, place of origin and ethnic origin.

2Under cover letter dated May 3, 2012, the Tribunal forwarded a copy of the Application and a Notice of Application, which directed the respondents to file their Responses by June 7, 2012.

3On June 1, 2012, the respondents filed a Request for an Order During Proceedings (“Request”) asking the Tribunal to order the applicant to provide full particulars with respect to various allegations, including the names of the managers and co-workers who engaged in the alleged differential treatment, racial slurs, and inappropriate comments, the nature of the alleged treatment and statements, and the dates/times/locations of the alleged conduct.

4The respondents assert that the applicant has neither identified the co-workers who allegedly harassed her, nor indicated which members of management allegedly allowed the conduct to continue. The respondents contend that they require further particulars of the applicant’s allegations in order to allow them to file a meaningful response to the Application and submit that they should not be put to the task of defending themselves until the applicant has provided sufficient particulars.

5On June 14, 2012, the applicant filed a response to the Request providing some further details of her allegations.

DECISION

6In Miga v. Arcelor-Mital Dofasco, 2012 HRTO 619, the Tribunal stated that the purpose of particulars is to alert responding parties and the Tribunal as to what alleged facts and legal issues give rise to a breach of the Code.

7The Tribunal has repeatedly held that, absent exceptional circumstances, respondents are required to file a completed response prior to raising preliminary issues, such as requests for particulars or disclosure: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180; Ugolini v. Salvation Army Barrie, 2009 HRTO 1801; Asefa v. Can-Am Logistics, 2010 HRTO 1531 and Rose v. Toronto Police Services Board, 2011 HRTO 1784.

8When a respondent challenges the sufficiency of particulars in an application prior to filing a response, the question the Tribunal must decide is whether or not the application is so deficient of information about the alleged facts and legal issues which trigger the alleged Code violations that the respondent is unable to comply with its obligation to file a response.

9The Application provides the following information and makes the following allegations:

• The applicant was subjected to alleged discrimination and harassment by the three personal respondents: Tina Tackore, manager; Cathie Hutchinson, Supervisor, National Accounts, and Rose Chunara, Supervisor, Counterforce;

• The personal respondents Tackore and Hutchinson allegedly created a poisoned work environment, including yelling and bullying the applicant in the presence of colleagues and treating her curtly and dismissively;

• The applicant filed discrimination complaints with human resources and also complained to the Vice-President of Finance to no avail;

• The applicant was subjected to alleged offensive remarks and innuendo about being an immigrant;

• In a meeting on January 30, 2012 about her application for a supervisor position, the personal respondent Tackore made remarks to the applicant about being an immigrant and having a hard time integrating to Canada. Tackore allegedly commented that Canadians are friendlier and yelled at the applicant about the applicant’s friend, a Spanish employee, who had filed a human rights complaint against Tackore. The applicant alleged that she was previously advised that she would get the supervisor job because of her experience; however, during the meeting Tackore did not interview the applicant about her skills, knowledge or qualifications;

• Personal respondent Chunara also created a poisoned work environment for the applicant. Chunara treated Pakistani workers better, attempted to recruit the applicant to complain about Ivonne B., a Spanish worker, and made remarks about the racial background of Denise P. and Jose K.;

• The applicant raised her concerns of racial discrimination to human resources and requested an investigation. The applicant alleges that Sandra Santos, the senior human resources manager took exception to allegations and chastised the applicant;

• After her complaints to human resources, personal respondent Tackore singled the applicant out for differential treatment, made remarks about the applicant’s accent and told the applicant that her English was bad and that she needed to take English courses. Personal respondent Tackore treated Trinidadian workers better. The applicant reported her concerns about the hostile remarks to Sandra Santos; however, the senior human resources manager did nothing to correct the situation;

• A few days after the applicant reported her concerns, personal respondent Tackore intensified her harassment of the applicant, including being disrespectful, rude, critical and pretending not understand the applicant because of her accent;

• Management and human resources were aware of the on-going hostility the applicant was subjected to by personal respondents Tackore and Chunara and inaction by management and human resources condoned the harassment and discrimination; and

• Since becoming the applicant’s supervisor, personal respondent Tackore escalated the harassment and discrimination by excessive pressure, criticism and ignoring the applicant’s suggestions.

The applicant’s response to the Request provides the following information and makes the following allegations:

• Whenever the applicant asked personal respondent Tackore a question pertaining to the job, personal respondent Tackore would laugh at the applicant in the presence of co-workers and say “when are you going to get rid of that accent” and stated that the applicant’s accent is not Canadian;

• On January 30, 2012, personal respondent Tackore called the applicant an immigrant that is having a hard time integrating into Canadian society;

• All three personal respondents treated the applicant differently; and

• Upon realizing that the personal respondents condoned discrimination and harassment, Leis and Abigail started to harass the applicant, including Leis calling the applicant “a frick, an unbalanced person” and wanting to know why personal respondent Tackore didn’t fire the applicant.

10Based on my review of the Application, I do not accept that the applicant’s allegations are so vague or lacking in sufficient clarity that the respondents are completely prevented from responding to the claims.

11The applicant alleges that she was subjected to discrimination and harassment at work. The applicant alleges that she alerted management and human resources to her concerns and sought an investigation; however, no support was forthcoming and management’s inaction exacerbated the hostile work environment. The applicant has identified five members of management who allegedly participated in or allowed the discriminatory conduct to continue, specifically, the three personal respondents, the senior human resources manager and the Vice-President of Finance. The applicant has identified various co-workers who either participated in the alleged mistreatment or who the applicant perceived were also the object of alleged mistreatment. The applicant identified two ethnic groups of workers (Pakistani and Trinidadian) that were allegedly subjected to favourable treatment.

12I do not agree with the respondents that the content of this Application is so deficient that they are precluded from knowing the general case to which they have to answer. While the applicant’s narrative does not identify the exact dates of the incidents which created the alleged poisoned work environment, the narrative does provide details of the various occurrences giving rise to her concerns and the general scope in time of the events. There is an adequate amount of detail in the Application for the respondents to know what alleged facts and legal issues give rise to a breach of the Code.

13Given the information provided in the original narrative and the response to the Request, I do not accept that the Application lacks such particularity that the respondents are unable to file a Response addressing many of the allegations. Presumably, the respondents have some information from the members of management and human resources identified in the Application as allegedly having knowledge of the applicant’s complaints for respondents to be able to file a Response setting out which allegations or incidents they accept and/or deny or have a different perspective of the events.

14This case does not demonstrate the exceptional circumstances necessary to justify an order for particulars in advance to a respondent filing a response. The respondents have not persuaded me that the allegations in the Application are inadequately particularized that they are unable to address the applicant’s claims without an early order for particulars. At this stage of the proceedings, I find that the Application is sufficiently detailed for the corporate respondent and each of the personal respondents to indicate what aspects of the Application are accepted or disputed and to set out their general defence to the claim.

15I conclude that, for the purposes of this preliminary stage of the proceeding, the Application contains sufficient information to enable the respondents to compile their Responses and, within their Responses, to address certain claims and indicate which specific allegations they are unable to accept or refute because of alleged lack of particularity. It remains open to the respondents to renew their request for particulars at a later point in the process. Consequently, the Tribunal denies the respondents’ Request for an order requiring particulars prior to the filing of the Response(s).

ORDER

16The respondents’ Request for particulars is denied. Within 35 days of the date of this Interim Decision, the respondents are required to file their Responses (Form 2).

17I am not seized.