Hussein v. Woodgreen Red Door Family Shelter, 2012 HRTO 2129

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abdi Hussein Applicant

-and-

Woodgreen Red Door Family Shelter Respondent

Workers United Canada Affected Party

INTERIM DECISION

Adjudicator: David Muir Date: November 15, 2012 Citation: 2012 HRTO 2129 Indexed as: Hussein v. Woodgreen Red Door Family Shelter

WRITTEN SUBMISSIONS

Abdi Hussein, Applicant Self-represented

Woodgreen Red Door Family Shelter, Respondent Laura A. Reesor and Mireille Khoraych, Counsel

Workers United Canada, Affected Party Fil Falbo, Representative

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 age, citizenship and creed. This Interim Decision deals with a number of issues raised by the parties.

2The respondent has filed a Request for Order During Proceeding (Request) seeking the dismissal of all or part of the Application on the basis that it is untimely. The respondent has also filed a Request for Summary Hearing seeking the dismissal of all or part of the Application because it has no reasonable prospect of success. The applicant has filed a Request for Order seeking the production of documents. The Affected Party has filed a Request to Intervene.

Request to Intervene

3The affected party filed a Request to intervene (Form 5). Other than identifying itself the Form 5 is blank. The Request to Intervene is denied at this time. If the affected party wishes to intervene it should deliver and file a completed Form 5.

Request for Production

4The Request is premature at this stage. The Tribunal’s Rules of Procedure, particularly Rules 16 and 17 require that the parties deliver to each other all arguably relevant documents; that they identify to each other the documents they intend to rely upon and identify witnesses all well prior to the hearing. If after the parties have begun the process of disclosure it appears to either party that arguably relevant documents have not been identified or produced, Requests can be made at that stage.

Request for Summary Hearing

5The Request for a Summary Hearing is denied. The Tribunal’s Rules provide that where such a Request is denied the Tribunal need not provide reasons, however in this case the following comments are appropriate. The applicant has no direct evidence of discrimination however that it is not unusual. In this case not unlike many others the Tribunal may be called upon to consider whether an inference might be drawn from some of the circumstances alleged by the applicant. There also appear to be disputes about the facts. In cases where there are competing accounts of what actually happened, it may not be possible to determine whether there is no reasonable prospect that the Application could succeed without hearing some evidence. In those cases it may not be possible to determine if there is no reasonable prospect that the Application could succeed based on the summary hearing process. This of course does not mean that the Application has a reasonable prospect of success only that at this stage it would not be appropriate to deal with this case on a summary basis.

6I also observe as the Tribunal discussed in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, that the denial of a summary hearing request at this stage does not necessarily mean that a full hearing will always be required to resolve a dispute. The Code and the Tribunal’s Rules of Procedure give the Tribunal broad powers to structure hearings to ensure fair, just and expeditious adjudication of Applications.

The Delay Issues

7This Application was filed on April 3, 2012. In his Application the applicant relies on the following allegations:

a. An allegedly discriminatory question(s) asked of the applicant in July 2010 in the context of a workplace investigation;

b. Allegedly discriminatory questions asked of the applicant during the course of a workplace investigation in October 2010;

c. An allegedly discriminatory comment made in the course of a workplace meeting at the end of May 2011;

d. February/March 2012 alleged harassment by a manager;

e. Allegedly discriminatory conduct of a workplace investigation in March 2012.

8I observe that in his Response to this Request the applicant suggests that he has alleged reprisal on the part of the respondents. This does not appear to be the case as there are no Section 34 (1) and (2) of the Code provide as follows:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

9The Tribunal has interpreted these provisions of the Code as requiring that a person who wishes to pursue a claim of discrimination bring the claim forward by filing an Application within one year of the alleged incident, or where there is a series of incidents, within one year of the date of the last incident. The provision has been found to be mandatory subject to section 34(2). The limitation period is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim. (See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241).

10The phrase "series of incidents" in section 34(1)(b) recognizes that it is in the nature of human rights claims that it will often not be possible to identify discriminatory conduct based on one incident. The language in section 34(1) provides for the flexibility to accommodate that reality but at the same time requires that the claim be brought forward reasonably quickly once the discriminatory conduct can be identified. On the other hand the language of the section recognizes that it would not be appropriate that a human rights claimant file an Application at the first incident of what might be understood to be inappropriate treatment. The Tribunal has also determined that the logic of the section suggests that the gap between incidents in a putative "series" may be as much as a year, but rarely if ever longer than that. Depending on the nature of the allegations it might be a shorter time frame.

11The respondent concedes that the latter two allegations above are timely but argues that the others are not because they do not constitute a series of incident. The respondent argues that they appear to be discrete allegations with significant temporal gaps between them involving different individuals and are not sufficiently connected thematically to constitute a series of incidents. In this regard the respondent relies on a decision of mine in Chintaman v. Toronto District School Board 2009 HRTO 1225.

12At this preliminary stage I find, and it is a close call, based on the materials filed to date that this Application and the allegations as set out above are timely. While I agree with the respondent that there are a small number of allegations scattered over almost two years, the allegations appear at this preliminary stage to be at least potentially sufficiently thematically connected to meet that aspect of the test. Unlike in Chintaman above, the applicant has pleaded some facts which might support the inference he asks the Tribunal to draw. I also agree with the respondent that there are significant gaps in time between them particularly between the alleged discriminatory comment on May 31, 2011 meeting and the next incident complained of which the applicant claims occurred in February/March 2012. However this gap is less than 12 months which has often been accepted as the outside temporal limit to preserve a series of alleged incidents. In this case this gap is closer to nine months and in my view in these circumstances the time gap is not sufficient to break up the potential series of incidents.

Other Matters

13The applicant has indicated a willingness to attend mediation. The parties are directed to confirm their intentions with respect to mediation in writing within 14 days of the date of this Interim Decision. If there is no agreement for mediation the Tribunal will schedule a two day hearing for this case.

14I am not seized of this case.