Nuur v. Chubb Edwards, 2012 HRTO 2040

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

A N D B E T W E E N:

Jose Kaseba Applicant

-and-

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

A N D B E T W E E N:

Ivonne Burton Applicant

-and-

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

INTERIM DECISION

Adjudicator: Ena Chadha Date: October 25, 2012 Citation: 2012 HRTO 2040 Indexed as: Nuur v. Chubb Edwards

WRITTEN SUBMISSIONS

Halima Nuur, Applicant Marcia Canner, Representative

Jose Kaseba, Applicant Marcia Canner, Representative

Ivonne Burton, Applicant Marcia Canner, Representative

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

1These three Applications are filed against the same corporate respondent and some of the same individual respondents. By way of Case Assessment Direction dated October 2, 2012, the Tribunal directed the parties to file written submissions with respect to whether or not these Applications should be consolidated.

2The applicants wrote to the Tribunal indicating that they support consolidation.

3The respondents filed submissions opposing consolidation. The respondents submit that consolidation will not avoid delay and will not result in less inconvenience to witnesses and repetition of evidence. The respondents indicate that there is minmal overlap between the Applications. The respondents express strong concern over the fact that consolidation would give each applicant party status that would exempt them from a witness exclusion order creating the potential for collusion.

ANALYSIS & DECISION

4Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

5In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (C.H.R.T.), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

6The applicants agree to consolidation; however, the respondents object. The respondents claim that the Applications are different and the respondents are concerned that the applicants may collude.

7I find that the factors discussed in Persaud favour consolidation of these Applications.

8I disagree with the respondents that the Applications raise divergent issues. Based on a review of each of the narratives, the Applications overlap with respect the following matters:

• Code grounds/social area -- All Applications allege discrimination and harassment because of race, place of origin, ethnic origin and ancestry in employment.

• Timeframe -- All Applications relate to similar period of time.

• Allegations re. racial discrimination -- All Applications allege a poisoned work environment, racial slurs, inappropriate comments, favouritism of certain ethnic groups and mistreatment of persons associated with a Spanish co-worker.

• Allegations re. individual respondents -- All Applications identify two of three individual respondents as named respondents.

• Allegations re. corporate respondent -- All Applications allege that the corporate respondent failed to address the hostile work environment despite the same human resources representative being alerted to concerns.

• Allegations -- All Applications reference the treatment of the male applicant, as well as reference another human rights case by a Spanish co-worker.

As such, the allegations, facts and issues that are common to all three Applications are significant.

9I find that the Applications are inter-related, that the witnesses will most likely be the same and that the parties are all the same, except for one individual respondent. I appreciate that there is concern that this individual respondent, although named in only one Application, will be required to participate in a process involving the other two Applications. Such a concern may be addressed by the adjudicator overseeing the hearing on the merits, for example by arranging the order of evidence.

10I also understand the respondents’ concern regarding collusion. However, a risk always exists in cases where there are multiple parties on opposing sides that certain individuals may attempt to shore up their respective positions. The Tribunal is aware of such issues and carefully considers the credibility and reliability of all evidence. The Tribunal recognizes that a witness’s opportunity and/or inclination to tailor evidence is a factor for consideration in evaluating credibility: Loomba v. Home Depot Canada, 2010 HRTO 1434.

11In conclusion, I find that hearing these Applications together will ensure a more efficient use of the Tribunal’s resources, will be more convenient for witnesses, will reduce repetition of evidence and makes sense to address common issues of fact and law.

ORDER

12The Tribunal orders that the Applications be consolidated and proceed together.

13I am not seized of this matter.