Shahenaz Alibhai v. Aditya Birla Minacs Worldwide Inc., 2012 HRTO 51

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shahenaz Alibhai

Applicant

-and-

Aditya Birla Minacs Worldwide Inc.

Respondent

INTERIM DecisION

Adjudicator: David Muir

Date: January 10, 2012

Citation: 2012 HRTO 51

Indexed as: Alibhai v. Aditya Birla Minacs Worldwide

1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) filed on March 11, 2011. This Interim Decision deals with a Request for Order During Proceeding filed by the respondent seeking clarification of the scope of the Application. The respondent seeks the removal of an allegation of the age discrimination on the basis that there are no material facts plead that could support such a finding.

Background

2In an Interim Decision 2011 HRTO 2048, dated November 9, 2011 (the “November Interim Decision”) I granted the respondent’s Requests that an individual be removed as a respondent as well the instant question - that the allegation of age discrimination be dismissed on the basis that the applicant had failed to plead any material facts that would support such a finding. Subsequently in 2011 HRTO 2219 I reconsidered my decision to dismiss the age allegation on the basis that the applicant through no fault of her own did not receive the respondent’s Request and did not have an opportunity to respond to it prior to the November Interim Decision being released. The applicant was given a further opportunity to make submissions in support of her view that the Application ought to include an allegation of age discrimination. The applicant’s submissions have been received.

The Age Issue

3The respondent states that other than checking off the box in the Form 1 indicating that the applicant is alleging discrimination on the basis of age, there are no facts alleged that draw a connection between the events described and age discrimination. The respondent also states that despite their raising this concern in their Response the applicant has not provided any further particulars in her Reply, or otherwise, that would relate to a claim of age discrimination.

4I have reviewed the Application and the applicant’s Reply, the flling of which was delayed because of extension requests by the applicant. There is no allegation in the Application that would support an allegation of age discrimination. The only allegation made by the applicant was that the respondent hired young advisors. In her submissions the applicant reiterated that point and requested that the Tribunal audit the employment practices of the respondent to ensure that they are in accordance with the Code’s requirments.

5I am not satisified that there are any allegations in the Application or the applicant’s Reply that would engage a claim of age discrimination. The only reference to age in the Reply is the bald assertion that the respondent hired young advisors. That fact, if true, is in itself insufficient to support the conclusion that the applicant’s right to be free of discrimination on the basis of age was infringed by the respondent. There are no allegations of age discrimination that require a response from the respondent.

6As regards to the applicant’s request that the Tribunal audit the respondent’s employment practices, it is not the Tribunal’s responsibility to gather evidence for the parties. The parties are expected to gather the evidence they believe necessary to support their respective positions and then to present that evidence to the Tribunal in accordance with the Tribunal’s Rules.

7The parties are beginning their final preparations for a hearing of this case. A mediation was held that did not result in a settlement. At this late stage there are still no particularized allegations of age discrimination experienced by the applicant. In my view it would be unfair to leave this issue outstanding any further. Accordingly, I find it is most fair, just and expeditious that the issue of age discrimination be removed from the Application.

Order

1. The allegation of discrimination in employment on the basis of age is removed from the Application.

8I am not seized.