Tarek Ibrahim v. Hilton Toronto, 2012 HRTO 1670

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tarek Ibrahim

Applicant

-and-

Hilton Toronto

Respondent

Interim Decision

Adjudicator: Ena Chadha

Date: September 5, 2012

Citation: 2012 HRTO 1670

Indexed as: Ibrahim v. Toronto Hilton

WRITTEN SUBMISSIONS

Tarek Ibrahim, Applicant

Self-represented

Hilton Toronto, Respondent

Michelle A. Alton, Counsel

INTRODUCTION

1This Application was filed on May 22, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended ("Code") alleging discrimination and reprisal with respect to employment on the basis of family status and marital status.

2The applicant alleges that he was subjected to discrimination and harassment by his co-workers, supervisors and a human resources representative because he requires accommodation of his shift schedules due to custodial arrangements for his child. The applicant alleges that the respondent has refused to accommodate him and also denied him overtime.

3The respondent filed a Response on June 29, 2012, denying the allegations. The respondent alleges that the applicant has refused to provide necessary details for it to be able to determine what, if any, accommodation is possible. The respondent also submits that a number of the applicant's allegations are entirely unrelated to the Code.

4The applicant filed a Reply on July 17, 2012 alleging that that he has been subjected to increased retaliation. In his Reply, the applicant noted that he no longer consents to mediation.

Applicant's RFOP

5On August 2, 2012, the applicant filed an ("RFOP") asking to amend his Application to include various incidents of alleged discrimination in relation to his family status from April 2010 to November 2010, including the denial of overtime and lack of cooperation regarding accommodating his family obligations. The RFOP also seeks to add allegations of harassment from February 2010 to June 2010 involving various incidents of threats and mistreatment. The new allegations relate to incidents on the following dates in 2010: February 25, March 2-4, April 14, 16, 25, May 27, June 3, November 15 and 23. (the "2010 allegations").

6On August 16, 2012, the respondent filed a response opposing the applicant's RFOP on the basis that the applicant has been aware of the 2010 allegations for a lengthy period of time and has failed to establish any good faith reason as to why he did not file an Application regarding the alleged incidents in a timely manner. In addition, the respondent argues that the applicant should be declared a vexatious litigant because this is the applicant's second Application and this RFOP is the applicant's second attempt to pursue identical allegations which the Tribunal declined to add to his first Application.

ANALYSIS & DECISION

Request to Amend

7Rule 1.7(c) of the Tribunal's Rules of Procedure ("Rules") states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may "allow any filing to be amended."

8In determining requests to amend applications filed under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

9I am satisfied that the applicant should not be permitted to amend the Application to add the proposed 2010 allegations. The applicant has not provided any explanation for his failure to include these allegations in his Application as filed in May 2012. I also consider it a factor militating against the amendments that the 2010 allegations are outside the one-year time limit set out in section 34(1) of the Code.

10The background to this request is an important consideration. The applicant filed an Application (2010-05466-I) in April 2010. In that first Application, the applicant alleged discrimination in employment on the grounds of race, colour, place of origin, ethnic origin, creed, sex, and family status. The applicant alleged that he was not treated fairly due to days off work for a family member; a poisoned working environment; failure of the respondent to investigate his concerns; and failure to receive a promotion after raising his harassment and discrimination allegations.

11A hearing into the applicant's first Application commenced on January 20, 2012. It appears that at the hearing the applicant raised for the first time various new allegations which he sought to pursue as part of that case. The Tribunal hearing the first Application issued a Case Assessment Direction requiring the applicant to file a Request for Order During Proceedings ("first Request") seeking to amend that Application and requiring that he set out the details of the proposed new allegations.

12The applicant subsequently filed his first Request describing approximately 3 pages of new allegations from February 25, 2010 (pre-dating his first Application) to January 31, 2012 (after the commencement of hearing). Ultimately, the Tribunal refused to allow the applicant to amend his first Application to include the proposed new allegations: see Ibrahim v. Hilton Toronto, 2012 HRTO 740.

13The applicant's current RFOP makes allegations only with respect to events in 2010. As previoiusly noted, the proposed allegations relate to incidents spanning from April to November 2010. Based on the Tribunal's Interim Decision in the first Application, the 2010 allegations were clearly the subject of the applicant's first Request and considered by the Tribunal in arriving at Interim Decision 2012 HRTO 740. At paragraphs 17-19, the Tribunal references the applicant's allegations which are identical in nature and time to the 2010 allegations which are the subject of the current RFOP.

14The Tribunal released its Interim Decision (2012 HRTO 740) in the applicant's first Application on April 13, 2012. It is evident from the reasons of that Interim Decision that the applicant sought to pursue the very same 2010 allegations as part of the litigation of his first Application. As such, I find that the applicant clearly apprehended the alleged 2010 incidents as discrimination and harassment at the time of his filing the current Application. The applicant filed this current Application on May 22, 2012, over one month after the Tribunal concluded that it was unfair to the respondent to allow the applicant to raise the 2010 allegations in that hearing. I find that there is no doubt that the applicant was aware of the import of the 2010 allegations well before commencing the current Application and was also aware that the Tribunal determined that the 2010 allegations would not be included in his first Application.

15The applicant has offered no explanation as to why he did not include the 2010 allegations in the current Application, particularly when he detailed numerous concerns of family status discrimination in his narrative. If the applicant believed that his current allegations were an example of the continuation of the discriminatory experiences from 2010 the applicant could have alleged the same in his Application. However, the applicant made no such claims.

16While section 34(1) applies only when an applicant files an application with the Tribunal, the matter of delay is nevertheless a relevant factor in considering whether it is appropriate for the Tribunal to exercise its discretion to allow the pleadings to be amended. In assessing amendment requests, the Tribunal considers both the timing of the request and the nature of the proposed amendments, the latter also including the temporal nature of the allegations. In the instant case, the 2010 allegations pre-date this Application by almost two years and the alleged events take place over a nine month period of time. The applicant did not address any good faith reason as to why he did not include these allegations when he originally filed his Application, nor why he did not file a timely application regarding those concerns. Had the applicant included the 2010 allegations in the current Application, the Tribunal would still have been required to consider whether it had jurisdiction over those aspects of the Application given the issue of delay.

17In summary, I decline to allow the applicant to amend the Application to include the 2010 allegations. The applicant has not provided any explantion for his failure to include these allegations in his original Application and the allegations are beyond the one year time limit set in the Code.

Vexatious Litigant

18The respondent alleges that the applicant's conduct and the nature of the allegations lead to the conclusion that the applicant should be declared a vexatious litigant. The respondents allege that by attempting to circumvent the Tribunal's earlier Interim Decision, which held the proposed allegations could not be pursued in the hearing of the first Application, the applicant is engaging in an abuse of process.

19Rule 1.7 (v.1) authorizes the Tribunal to "make such orders or give such directions as are necessary to prevent abuse of its processes and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants". In controlling its process and preventing abuses of that process, the Tribunal can declare, on its own motion, an individual a vexatious litigant: Drenic v. Governing Council of the Salvation Army, 2010 HRTO 921. The rationales for undertaking an assessment of whether an applicant is a vexatious litigant are to protect respondent parties from vexatious conduct, to ensure that the Tribunal's resources are not wasted and that the integrity of the Tribunal's process is safeguarded from abusive tactics: Visic v. Law Society of Upper Canada, 2012 HRTO 1642.

20While the respondents have been twice forced to answer the applicant's claims, I am not convinced that this warrants a vexatious litigant order. Having twice unsuccessfully sought to amend an application is not of the magnitude or repetitiveness of unmeritoriousness and inappropriate conduct that has necessitated vexatious litigant orders in other Tribunal proceedings: Drenic v. Governing Council of the Salvation Army, supra, and Abdul v. University of Toronto, 2011 HRTO 2299. Even if the applicant was trying to belatedly expand the scope of his Applications, attempting to do so does not constitute litigation for an improper or vexatious purpose. As such, I decline to make any finding or order with respect to the claim of abuse of process or vexatious litigant.

21The respondent's request to declare the applicant a vexatious litigant is denied, without prejudice to the respondent's right to raise this issue at the hearing on the merits.

ORDERS

22The Tribunal orders as follows:

i. Given the applicant's refusal to participate in mediation, the mediation scheduled for November 22, 2012 is cancelled;

ii. The applicant's request to amend the Application is denied; and

iii. Should the respondent maintain its request for a vexatious litigant declaration, the adjudicator overseeing the hearing into the merits of this Application will decide whether or not to hear submissions with respect to the issue of a vexatious litigant order.

23I am not seized of this matter.