Aghajan v. Metropolitan Toronto Condominium Corporation No. 824, 2012 HRTO 1985

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Setrak Aghajan Applicant

-and-

Metropolitan Toronto Condominium Corporation No. 824, Linda McLean and Patrick Neals Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: October 19, 2012 Citation: 2012 HRTO 1985 Indexed as: Aghajan v. Metropolitan Toronto Condominium Corporation No. 824

APPEARANCES

Setrak Aghajan, Applicant Self-represented

Metropolitan Toronto Condominium Corporation No. 824, Linda McLean and Patrick Neals, Respondents Bradley Chaplick, 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 race, place of origin, ancestry, ethnic origin and creed.

2This Interim Decision deals with the respondents’ Request for Summary Hearing which seeks the dismissal of the Application for the reason that: 1) the respondents were not the employer of the applicant at the material times related to the allegations; and 2) there is no evidence of discrimination.

3A Case Assessment Direction (“CAD”) was issued on May 30, 2012, directing that a Summary Hearing be held. It was held by way of teleconference on October 12, 2012.

BACKGROUND

4The corporate respondent, a condominium corporation, has a building in close proximity to another condominium corporation’s building. They therefore share management despite having separate boards of directors. They retained a property management company (“Brookfield”) to run many aspects of their buildings, but the applicant worked as security supervisor for the condominium corporations, not Brookfield, until 2008 when the property manager needed to be replaced, and certain board members from the condominium corporations encouraged the applicant to fill the position. He had been in the building for many years and was known by the unit owners. The applicant applied.

5The majority of the directors of the corporate respondent and the other condominium corporation voted to offer the position to the applicant, although the personal respondents, both members of the corporate respondent’s board of directors, voted against the applicant for reasons that they state were related to the superior résumés of candidates suggested by Brookfield.

6The condominium corporations advised Brookfield that they had decided on the applicant as the successful candidate. The applicant therefore quit his position as security supervisor and became an employee of Brookfield as property manager of the same buildings in which he had worked as an employee of the condominium corporations.

The Applicant’s Intended Evidence

7The applicant’s allegation is essentially that his work performance was not a problem, but the personal respondents, who were members of the corporate respondent’s Board of Directors, dishonestly claimed that it was. The personal respondents appear to have been the client contacts with whom Brookfield communicated about the property management services it provided through the applicant, and the applicant alleges that the personal respondents succeeded in causing him to lose his position as property manager by making untrue accusations about his work to Brookfield because they were prejudiced against his Middle Eastern origins.

8The Application alleges that the personal respondents complained about the applicant’s work performance to Brookfield and asked for his dismissal after they found out about his “background, place of birth, creed etc.” when he provided the hiring committee of the condominium corporations with his resume and degrees from Iraq. The Application alleges that the personal respondents, who had always been friendly to him, became hostile once they found out about his Iraqi background. The Application states that the personal respondents saw his documents which indicated that he was from Iraq at the time of the second Gulf war and the capturing of Saddam Hussein. The applicant states in his Application:

During my interview for the vacant property manager’s position…, back on June 16th 2008, Mrs. McLean slammed a binder on the table, asking why she came to know the details of my origin and background only then. Up until that time, she had believed that I was of Eastern European origin, due to my fair complexion. I politely answered to her question that it was because no one had asked me. Her facial expression showed that she was dissatisfied with my answer.

9The Application alleges that upon learning of the applicant’s origins, the personal respondents voted against hiring the applicant. The majority of Board members from the two condominium corporations voted to hire him notwithstanding the personal respondents’ position. The Application alleges that, from then on, the personal respondents treated him unfairly because of his origins.

10At the Summary Hearing, the applicant stated that his evidence about what was said on June 16, 2008 will be corroborated by a witness who was also at that meeting. He also stated that his evidence will be that he had previously hidden his background from board members of the condominium corporations because there was often talk of Middle Eastern terrorists. Because he spoke Polish to the superintendent in front of everyone, they thought that he was Polish. He also stated that his evidence would show that his work performance was not a problem.

11As noted in the Case Assessment Direction, the issue in a summary hearing is whether the Application should be dismissed on the grounds that there is no reasonable prospect that the Application could succeed if it were the subject of a full hearing at the Tribunal. If the Tribunal allows an Application to proceed after a summary hearing, it does not mean that the Tribunal has made any finding about the merits of the Application. It generally means that the Tribunal has found that the applicant has made allegations which, if true and proved, could lead to a finding that the applicant’s Code-protected rights were infringed.

12The Tribunal’s Rule 19.6 states that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons, but I note that the applicant has pointed to evidence, which, if true, might lead to a finding of discrimination.

[Section 5](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec5_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

13Section 5 of the Code states:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

14I disagree with the respondents’ argument that the s.5 of the Code does not encompass the relationship they had with the applicant because they did not employ the applicant at the time that he lost his position as property manager, and I adopt the reasoning in Chappell v. Securitas Canada Limited, 2012 HRTO 874:

Section 5 of the Code, however, prohibits discrimination “with respect to employment” and there is no language limiting the prohibition to employment relationships. The Tribunal has considered the phrase “with respect to” in the context of the prohibition of discrimination “with respect to services” in section 1 of the Code. See: Contini v. Rainbow District School Board, 2011 HRTO 1340 and Dopelhamer v. Workplace Safety and Insurance Board, 2009 HRTO 2056. In those cases, the Tribunal noted that the Supreme Court of Canada, in Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, at paragraph 26, and Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at page 39, interpreted the similar term “in respect of” and found that it is a broad expression intended to convey a connection between two related subject matters. Given the expansive, liberal and purposive approach to interpreting the Code the Tribunal found that the words “with respect to” should also be broadly interpreted. I agree with this analysis, which in my view applies equally to section 5. Accordingly, I find that the protections afforded by section 5 are not limited solely to incidents arising within employment relationships.

15As in Chappell, cited above, while the respondents did not have a formal employment relationship with the applicant, it appears from emails attached to the submissions that the respondents had the ability to fundamentally affect his employment and that their alleged actions had significant repercussions on his employment.

CONCLUSIONS

16Based on the documents submitted by the parties and the information provided at the summary hearing, I find that it cannot be said that there is no reasonable prospect that the Application will succeed. The Application is not dismissed at this time.

17Counsel for the respondents indicated his intention to make a request to remove the personal respondents. He may do so at any time, but the Tribunal will continue to process the Application in the meantime, and the Registrar will schedule mediation.