Kohli v. International Clothiers, 2012 HRTO 21

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vandana Kohli

Applicant

-and-

International Clothiers, Malik Awan and Shafiq Bajwa

Respondents

decision

Adjudicator: David Muir

Date: January 5, 2012

Citation: 2012 HRTO 21

Indexed as: Kohli v. International Clothiers

APPEARANCES

Vananda Kholi, Applicant ) Victoria Shen, Counsel

International Clothiers, Malik Awan, ) Malik Awan, Representative

and Shafiq Bajwa, Respondents )

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 in employment on the basis of sex.

2The hearing of this case was scheduled to begin at 9:30 a.m., Wednesday January 4, 2012. A Notice of Confirmation of Hearing setting out the date had been sent to the parties in July 2011. There is no indication that the respondents were unaware of the hearing or the time it was scheduled to begin.

3At the time and place set for the hearing, no one was in attendance for the respondents. In accordance with the Tribunal’s usual practice the hearing was adjourned for 30 minutes. At 10:00 a.m., the hearing resumed. None of the respondents were present. I was satisfied that the respondents had received proper notice of the hearing and the hearing proceeded in their absence.

4After some discussion with the applicant about how to proceed, the applicant was affirmed and adopted the Application Form, her Reply and a document entitled “Opening Statement” as her evidence. She was then questioned by her counsel and myself.

5At the conclusion of her evidence and following limited submissions by applicant’s counsel, I made findings in respect of the allegations made in the Application. Amongst my conclusions were that the applicant had been passed over for promotion to Assistant Manager positions on two occasions, in November and December 2009, because she was a woman. I also concluded that the applicant had been told by her store Manager, the respondent Bajwa, in October 2009 that she was not suitable for an Assistant Manager position because she was a woman. I also found that when she challenged these decisions and the reasons for them to the District Manager, Mr. Awan, she was subject to reprisal by Mr. Bajwa by amongst other things dramatically reducing her hours of work, requiring her to work on weekends and stripping her of responsibilities she had been exercising in the workplace prior to her seeking to vindicate her rights to be free from discrimination under the Code. I also found based on her evidence that when she raised the issue with Mr. Awan, he did nothing to investigate the situation. Finally I found that when she raised the issues again in writing with Mr. Awan and Mr. Bajwa in March 2010, the individual respondents turned the matter over to Human Resources which claimed to conduct an investigation but one which did not include talking to the applicant. I found that this was not an investigation at all.

6After making these determinations orally at the hearing, I asked for the applicant’s submissions on remedy. Just prior to the applicant concluding her remarks, one of the respondents, Mr. Awan, arrived, stating that he was representing all of the respondents and stating that there had been a scheduling mix-up. I advised him that I had made decisions on liability and that we were hearing the submissions of the applicant on remedy and that when this was concluded I would hear from him. I summarized the applicant’s position on remedy for the respondent.

7The respondent wanted to make submissions on the merits and to give evidence. I indicated again that I had made decisions on those issues and that that part of the hearing was over. I asked him what he proposed that we do, which prompted further submissions on the merits and further evidence. I indicated that I only wanted to hear his submissions on remedy at that point and that if he was asking me to re-open the hearing to entertain his evidence we would deal with that issue in writing. The respondents were not in a position to respond to the remedial issues at the hearing. I indicated that I would entertain their submissions on remedy in writing and reiterated again the applicant’s position before me on remedy. I indicated to the respondents again that I had found, based on the evidence of the applicant and the documents entered into evidence, that the Code had been violated by the respondents. I further indicated that substantially all of the applicant’s allegations in the Application and her Reply had been substantiated on the evidence and their submissions on remedy should take that as their starting point.

8Although not expressly framed in these terms at the hearing, if the respondents’ seek leave to re-open the hearing to tender evidence and make submissions on the merits of this Application given that those matters have been determined the only mechanism available to the respondents would be a Request for Reconsideration pursuant to section 45.7 of the Code and Rule 26 of the Tribunals Rules of Procedure.

9In order to ensure the fair just and expeditious adjudication of the Application I made the following Directions at the hearing:

a. Within seven days of the date of the hearing the respondents will deliver and file their submissions, if any, on remedy in light of my findings,

b. If the respondents wished to have the hearing re-opened to consider their evidence and submissions on the merits of the Application, they will deliver and file a Request for Reconsideration within seven days of the date of the hearing,

c. If further submissions are required the Tribunal will contact the parties.

10I am seized of this case.