HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tony Triantafillou
Applicant
-and-
Soulfx Technologies Inc.
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Triantafillou v. Soulfx Technologies Inc.
WRITTEN SUBMISSIONS
Tony Triantafillou, Applicant
Self-represented
Soulfx Technologies Inc., Respondent
Bob Ebrahimzadeh, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of ethnic origin. A hearing was held on June 6, 2012, commencing at 9:30 a.m. All parties appeared with their representatives, and they attempted to settle the Application through mediation-adjudication after signing a Mediation/Adjudication Agreement which includes the following paragraphs:
We understand that a Tribunal member will conduct the mediation. We agree that if the parties are unable to resolve the application through mediation, the Tribunal member who conducted the mediation will conduct the hearing and adjudicate the Application. Neither party may request that the Tribunal member recuse himself or herself based upon anything that occurred during the mediation.
And:
If the Application proceeds to adjudication, the mediator/adjudicator will not consider statements made or documents provided during the mediation unless they also form part of the evidence in the hearing. The decision will be based entirely on the evidence, submissions and case law presented during the hearing.
2By noon, the parties had not settled, and the hearing was to proceed. The applicant requested to adjourn the matter because he had not realized the hearing day would extend beyond the morning, and he needed to return to work in the afternoon. While the respondent opposed the request, I granted the adjournment, and provided reasons in an Interim Decision (2012 HRTO 1160, “the Interim Decision”) for doing so. Also in the Interim Decision, I made the next hearing date peremptory on the applicant. It has been set for August 21, 2012.
3At the hearing on June 6, 2012, the applicant’s representative undertook to provide, by June 20, 2012, full particulars, including when, where and by whom remarks alleged to discriminate because of ethnic origin were made. She also undertook to provide particulars with respect to the contents of the alleged remarks. I therefore directed in the Interim Decision that the applicant file those particulars with the Tribunal, with proof of delivery to the respondent, by June 20, 2012.
4The paralegal representing the applicant did not file the particulars by June 20, 2012. She wrote to the Tribunal with explanations, requesting a two week extension, but the particulars have still not been filed.
5On July 6, 2012, the respondent filed a Request for Order During Proceedings (“RFOP”) seeking the dismissal of the Application on the basis of abuse of process, principally because the applicant had not filed particulars in a context of the applicant’s history of not meeting deadlines set by the Tribunal’s Rules of Procedure.
6On July 9, 2012, the applicant’s representative e-mailed the Tribunal to say that she had been instructed by her client to withdraw his Application, and would be forwarding the appropriate forms.
7On July 10, 2012, the paralegal who had been representing the applicant e-mailed the Tribunal to say that she was no longer retained, and that the applicant was now self-represented. The Tribunal wrote to the parties, and stated that it would take no further action with respect to the paralegal’s reference to a withdrawal given that the Tribunal had received no Request to Withdraw.
REQUEST TO DISMISS FOR ABUSE OF PROCESS
8The applicant has not filed any response to the respondent’s RFOP to dismiss the Application for abuse of process, and the time for doing so has passed.
9The RFOP is based on the applicant’s failure to provide particulars as his representative at the time said at the last hearing day that she would do, and as he was directed to do in the Interim Decision. The respondent argues that it would be inappropriate to provide yet another deadline for the applicant to provide the particulars because he has repeatedly failed to comply with deadlines set by the Tribunal with respect to disclosure and particulars. The respondent argues that without particulars, it does not know the case it has to meet prior to the hearing and is prejudiced as a result. The respondent argues that “the only reasonable remedy in this situation is to dismiss the action for abuse of process.”
10I do not agree. Dismissing an application prior to a hearing for abuse of process is an unusual step and not warranted in these circumstances.
11The Application states, “I was addressed in derogatory and racist terms by the boss such as ‘Fat Tony’ referring to my wife’s Italian heritage. Also that I work for the ‘Caruso Brothers’.” The Reply states, “The Applicant is embarrassed about the derogatory remarks made by Mr. Herbert, Mr. Cheung and Mr. Erlindson on a daily basis regarding his weight, his ethnicity and his wife’s ethnicity. The reference to a cartoon character that represents a derogatory stereotype is extremely offensive to the Applicant and he was forced to endure this discrimination on a daily basis.”
12In the very least, the respondent knows that the Application is based on references to “Fat Tony” and the “Caruso Brothers” by certain employees. Any prejudice to the respondent may be prevented by granting the respondent an adjournment after the applicant has testified in chief, or by restricting the applicant to the allegations that references to “Fat Tony” and the “Caruso Brothers” constitute violations of the Code if he fails to provide further particulars of other comments he alludes to in his Reply that are related to his or his wife’s ethnicity.
13In the context of the applicant’s representative no longer being retained, it would not be an abuse of process to allow the applicant another opportunity to file his particulars, and to allow the Application to proceed to a hearing.
14The applicant has five days from the date of this Interim Decision to file with the Tribunal and deliver to the respondent his description of when, where and by whom remarks about “Fat Tony” and the “Caruso Brothers” were made. He must do the same for any other remarks allegedly related to his or his wife’s ethnicity, and he must describe the contents of those remarks.
15A failure by the applicant to file such particulars by that time may result in the Tribunal’s denial of the applicant’s reliance on them at the hearing on August 21, 2012.
OTHER REQUESTS AND DIRECTIONS
16The applicant recently complained to the Tribunal about me mediating the Application and then hearing it. The Associate Chair advised the applicant that I am seized of the Application and that the Tribunal will not replace me. Tribunal staff have provided me with a more recent e-mail exchange between the applicant, the Registrar of the Tribunal and the respondent which appears to demonstrate that the applicant would like to file a Request for Order During Proceedings (Form 10) seeking that I recuse myself on the basis that I am biased. The respondent’s counsel has stated that the respondent has not received the complaint about me, but “such a complaint is unwarranted and inappropriate in the context of the agreement of the parties when it engaged in mediation with the seized Vice-Chair.” The respondent “would be strenuously opposed to a rescheduling of the Hearing date.”
17If the applicant wishes to pursue any Request for Order During Proceedings seeking that I recuse myself, then the applicant must file the appropriate document, copying the respondent, and I will make best efforts to issue a decision on any such a Request prior to the hearing. If I have not decided prior to the hearing, then I will do so at the commencement of it, and, in the case that I refuse to recuse myself, the applicant must be prepared to commence with his opening statement and his evidence. The respondent will not need to have its witnesses present until the afternoon.
18Any and all other requests will be dealt with at the commencement of the hearing.
Dated at Toronto, this 3rd day of August, 2012.
“Signed by”
Mary Truemner
Vice-chair