Sayed-Zada v. Renin Corp., 2012 HRTO 588

Human Rights Tribunal of Ontario

Between:

S. Masoom Sayed-Zada Applicant

-and-

Renin Corp. Respondent

Interim Decision

Adjudicator: David A. Wright Date: March 21, 2012 Citation: 2012 HRTO 588 Indexed as: Sayed-Zada v. Renin Corp.

Appearances

S. Masoom Sayed-Zada, Applicant | Glenroy K. Bastien, Counsel Renin Corp., Respondent | Matthew R. Vella, Counsel

Decision

1During a Case Management Conference with the parties on March 15, 2012, the Tribunal ruled, with reasons to follow, that this Application would proceed to a hearing on the merits only on: (i) the allegations related to failure to accommodate the applicant’s disability contained in his original Application; and (ii) allegations 4, 8, and 14 of the “List of Discriminatory Incidents” filed by the applicant on February 29, 2012. These are the reasons for my oral decision.

2This is not a decision in any way about the merits of the case but about what the applicant may raise and what will be considered to be included in his pleadings. The respondent remains able to raise any defences or other arguments it wishes to raise at the hearing.

3This Application has had an extensive procedural history. The Application, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), was filed with the Tribunal on June 30, 2010 and delivered to the respondent on August 6, 2010. At the time of filing the Application, the applicant was self-represented. The respondent filed a Response on October 19, 2010. On January 9, 2011, counsel wrote to the Tribunal advising he was now representing the applicant. On January 14, 2011, the respondent filed a Request for Summary Hearing, which was extremely detailed. On January 26, 2011, the applicant, through his counsel, filed a Response to the Request for Summary Hearing, which contained various changes in position and theory of the case. On April 13, 2011, the Tribunal issued a Case Assessment Direction which indicated, among other things, that all outstanding issues, including the Request for Summary Hearing, would be dealt with following mediation, if necessary. On August 17, 2011, the Tribunal issued a Case Assessment Direction noting the changes to the applicant’s position and directing that the applicant file a Request for Order During Proceedings seeking leave to amend the Application, and attaching a copy of the proposed revised Application.

4The applicant’s subsequent request for leave to amend the Application was denied on the basis that the proposed revised Application did not contain sufficient detail as required by the Tribunal Rules: 2011 HRTO 2075. The Tribunal held a further Case Management Call with the parties and directed as follows:

1. By February 29, 2011, the applicant shall deliver to the respondent and file with the Tribunal a proposed revised statement of facts setting out in complete detail the allegations against the respondent, including full details of what happened, when it happened, who was involved, and why it is alleged to violate the Code.

(2) The respondent shall file written submissions outlining any objections to the statement being accepted as the applicant’s revised Application by March 14, 2012.

5Both parties subsequently filed materials as directed, and a conference call was held to hear argument on the Request on March 15, 2012. The applicant also indicated that he continued to rely upon the allegations of failure to accommodate raised in the initial Application despite the failure to include them in the revised statement of facts.

6The incidents relied upon by the applicant in his list of discriminatory allegations can be summarized as follows: (i) allegations of discriminatory comments made by the General Manager and part owner of the respondent in Fall 2005, April 2008, and February 2009 (allegations 1-3); (ii) an allegation of a discriminatory comment and assault by a co-worker in September 2009 (allegation 4); (iii) allegations of discriminatory comments made by this individual’s brother in Fall 2005 (allegation 5); (iv) allegations of discriminatory comments made by a co-worker between March 2002 and 2006 (allegation 6); (v) allegations of discriminatory comments made by a different co-worker during the same period (allegation 7); (vi) allegations of discriminatory comments made by a different co-worker in February 2010 (allegation 8); (vii) allegations of discriminatory comments by a different co-worker in the summer of 2010 (allegation 14). Paragraphs 10-13 relate to the knowledge of witnesses about other alleged incidents and are not, in fact, allegations of discrimination.

7The respondent states that the applicant should not be able to bring many of these allegations forward on the basis of delay, although it made appropriate concessions where incidents appeared timely. The applicant states that all of the comments form part of a series of events, establishing a poisoned work environment going back to 2005, and are not discrete incidents. He also argues that he was not aware that he could raise violations of his human rights with the Tribunal until recently.

8In my view, the applicant should not be permitted to bring forward incidents of allegedly discriminatory comments made more than a year prior to the filing of the Application in June 2010.

9Generally, events are not part of a series of incidents under s. 34 if there is a break in the temporal connection between them. A gap of more than one year between events has, in a number of cases, been deemed to interrupt the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. On this basis, the Tribunal will not deal with the pre-2008 incidents (allegations 1, 5, 6, 7).

10Assuming the April 2008 and February 2009 comments (allegations 2 and 3) are part of a series of incidents ending in 2010, I would not exercise my discretion to allow the applicant to amend the Application to include them, given that they were not particularized until this late stage in the Tribunal’s process and well after the time they allegedly happened, and that will be prejudice to the respondent in responding to them, given that the alleged perpetrator has left the company and there is litigation between him and the respondent.

11I allow the amendments to the Application contained in paragraphs 4, 8, and 14 as they relate to alleged incidents within a year of the filing of the Application and they were alluded to, although not properly particularized, in materials previously filed with the Tribunal.

12The respondent requested a summary hearing. The Request is denied, without reasons, in accordance with Rule 19A.5.

Order

13The Application shall be placed in the queue to be scheduled for a 2-day hearing, limited to the issue of failure to accommodate contained in the initial Application and allegations 4, 8, and 14 of the “List of Discriminatory Incidents” filed by the applicant on February 29, 2012. The Request for Summary Hearing is denied. The respondent may file a Response to allegations 4, 8, and 14 within 28 days of the date of this Interim Decision.

14I am not seized.