Tarek Ibrahim v. Hilton Toronto, 2012 HRTO 740

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tarek Ibrahim

Applicant

-and-

Hilton Toronto

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: April 13, 2012

Citation: 2012 HRTO 740

Indexed as: Ibrahim v. Hilton Toronto

APPEARANCES

Tarek Ibrahim, Applicant ) Self-represented )

Hilton Toronto, Respondent ) Michelle Alton, Counsel

1The hearing in this file commenced on January 20, 2012 and is scheduled to reconvene on April 24, May 15, 16 and 18, 2012. The Application was filed April 21, 2010. The applicant is a sous chef working at the respondent’s Toronto location. He is represented by his bargaining agent, Unite Here, Local 75 (“the union”) which, despite being sent notifications, is not participating in these proceedings.

2The applicant alleges discrimination in employment on the grounds of race, colour, place of origin, ethnic origin, creed, sex, and family status. Essentially, his allegations can be framed as: discrimination on the basis of family status due to days off work for a family member; discrimination and harassment by several of the applicant’s co-workers creating a poisoned working environment for the applicant; failure of the respondent to investigate or adequately investigate into his harassment and discrimination allegations that he brought to its attention; and failure to receive a promotion after raising his harassment and discrimination allegations.

3The Tribunal issued a Case Assessment Direction dated January 25, 2012 (“the January CAD”) in which it addressed three issues that were raised at the January 20, 2012 hearing: the 2008 allegations being untimely; whether the witnesses the parties intend to call during the hearing have first-hand evidence with respect to allegations contained in the Application or Response; and new allegations upon which the applicant intends to rely. An in-person hearing was held on March 5, 2012 specifically to address these three issues. The following are the Tribunal’s reasons with respect to these three issues.

The 2008 Allegations and Delay

The Applicant’s Submissions

4When the January 2012 hearing commenced, the Tribunal noted that the applicant’s allegations from 2008 appeared to be outside the Tribunal’s mandatory one year limitation period. The allegations pertain to a change in the applicant’s day off in March 2008 to which he alleges he complained to the respondent’s human resources department in April 2008. He alleges the change in his day off and subsequent contact with the respondent’s human resources department constitutes discrimination on the basis of family status under the Code. The next allegation in the Application is from May 5, 2009 when he wanted to apply for a promotion.

5The applicant submits that initially he considered the 2008 issue to be an isolated incident. However, he submits, as time went on, he found the respondent’s actions to be insincere in resolving the 2008 issue. He submits that there is not a gap between the 2008 allegations and because the issue was addressed in writing, there is no prejudice to the respondent. The applicant seeks a remedy for what happened in 2008 along with his subsequent allegations.

The Respondent’s Submissions

6The respondent submits that the allegations in 2008 are more than a year before the allegations in 2009 and do not form a “series of incidents”. It submits that the applicant has not provided a good faith reason as to why the 2008 allegations were not filed in a timely manner and that good faith is required under section 34(2) of the Code for the 2008 allegations to continue.

Analysis

7Section 34(1) of the Human Rights Code, R.S.O., 1990, c. H. 19, as amended, allows applications alleging infringements of rights to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances:

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 subsection 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.

8The Tribunal has the discretion to waive the mandatory limitation period where it finds that the applicant’s delay in filing the application was made in good faith. Good faith means something more than the absence of bad faith. In order to satisfy the Tribunal that the delay in filing was incurred in good faith, the applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

9Efforts to pursue one’s rights without filing an Application have not been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508.

10More recent Tribunal decisions have stated that to constitute a “series of incidents” within the meaning of section 34(1) of the Code, there must at least be some connection or nexus between the incidents that are alleged to form the series. Further, recent Tribunal decisions have held that a series cannot be comprised of incidents relating to discrete and separate issues. And finally, a gap of more than one year between incidents in a series would interrupt the series. (See DeFreitas v. Ontario Public Service Employees Union, 2010 HRTO 2049 at para. 11; Baisa v. Skills for Change, 2010 HRTO 1621 at para. 22; Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9 and Dupuis v. Religious Hospitallers of St. Joseph of Cornwall, 2010 HRTO 1079 at para. 14.)

11In this case, the applicant’s allegations are more than a year apart. As noted above, based upon the Tribunal’s jurisprudence a gap of more than one year interrupts the series of incidents. Further, the applicant has not provided any good faith reason as to why he did not file an Application with these allegations in a timely manner. While he submitted that as time went on he stopped viewing the 2008 issue as an isolated incident, and that he raised this issue with the respondent’s human resources department in 2008, those reasons are not sufficient to meet the good faith test as set out in Miller, supra, above. Accordingly, the applicant’s 2008 allegations contained in the Application are untimely and cannot be relied upon by the applicant during these proceedings.

The New Allegations

12During the hearing on January 20, 2012, the applicant advised for the first time that there were a number of new allegations upon which he intended to rely. The January 2012 CAD directed the applicant to file a Request for Order During Proceedings (“RFOP”) seeking to amend his Application and setting out details of the new allegations. The January 2012 CAD stated that the respondent was not required, at that time, to file a Response responding to the new allegations.

The Applicant’s Submissions

13The applicant subsequently filed a RFOP. In it, the applicant set out approximately 3 pages of new allegations, from February 25, 2010 (which pre-date his Application) to January 31, 2012 (after the hearing commenced), which he asserts are either harassment or discrimination and upon which he intends to rely at the hearing.

14At the March 2012 hearing, the applicant submitted that he is self-represented and not familiar with the Tribunal’s processes. From his perspective the harassment and discrimination that he experiences in the workplace is ongoing. With respect to the allegations that pre-date his Application, the applicant stated that neither the union nor the respondent’s human resources department would assist him, some of the issues were still “under investigation” by the respondent and he did not know the outcome of the investigation at the time of filing his Application which is why they were not included in his Application.

The Respondent’s Submissions

15The respondent submits that the Tribunal should not grant the applicant’s request to amend his Application to rely upon the new allegations. The respondent submits: the applicant did not make this request until after the commencement of the hearing; a number of the allegations do not constitute a prima facie violation of a Code ground; many are not connected to other allegations; some of the allegations pre-date the date of the Application itself and should have been included in the Application; and that some of the allegations, such as shift changes, are collective agreement issues but not Code issues.

Analysis

16In Wozenilek v. 7-Eleven, 2010 HRTO 407, the Tribunal stated at para. 26 that it would consider the following factors in deciding whether or not to amend a pleading: (a) whether the amendment would occasion actual prejudice to the other party; (b) fairness; (c) the conduct of the party seeking the amendment; and (d) the impact of the proposed amendment on the course of the hearing and any other parties.

17The Application was filed on April 21, 2010 and is dated April 19, 2010 by the applicant. The RFOP contains allegations under the heading “family status” from April 15 and 16, 2010, as well as allegations under the heading “harassment” from February 25, 2010, March 2, 3 and 4, 2010. All of those pre-date the filing of the Application. They were not referenced in the applicant’s reply that he filed on October 5, 2010 (“the Reply”).

18The RFOP also contains an allegation under the heading “family status” from July 1, 2010 and allegations under the heading “harassment” from May 27, 2010, June 2, 3, 7 and 8, 2010. These allegations were not included in the applicant’s Reply.

19The RFOP also contains allegations under the heading “family status” from November 15 and 25, 2010, September 15, 22, 25, 26, 27, 2011, October 3, 2011, January 17, 24, 25, and 30, 2012. Finally, the RFOP also contains allegations under the heading “discrimination” from November 4, 2010, and January 31, 2012.

20A witness statement dated December 19, 2011 of Andrew Jayashankar, delivered to the respondent’s counsel and the Tribunal on January 1, 2012, refers to “the incident on Feb. 25, 2010, between Tarek Ibrahim and Valeri Ivkhano”, but contains very little information about what allegedly occurred on February 25, 2010 and confirms that Mr. Jayashankar did not witness the alleged incident first hand. February 25, 2010 is one of the new allegations contained in the applicant’s RFOP.

21While the applicant submits that his explanation for not raising these allegations earlier that he is self-represented and unfamiliar with the Tribunal’s processes, the Tribunal’s statistics, found on its website (www.hrto.ca), shows that for the past several years approximately 70% of applicants are self-represented. The Tribunal has resources on its website to assist applicants and respondents with its process, available on its website and referred to on its forms. Further, the Application form itself provides contact information about the Human Rights Legal Support Centre for applicants to contact for legal advice and assistance. Accordingly, I do not accept the fact that the applicant is self-represented as a sufficient explanation as to why he did raise any of the allegations before the January 20, 2012 hearing. He has not provided any explanation as to why he did not raise the allegations that pre-date the filing of his Reply in his Reply.

22Further, at this stage of the process, after the hearing has commenced and after the parties have filed their witness statements and documentation upon which they intend to rely, I find that it would be unfair to the respondent to allow the applicant to rely upon the allegations that he set out in his RFOP. It would require the respondent to file a revised Response responding to each of the new allegations, and would likely require the respondent to file additional documentation and additional witnesses in response to these new allegations. Of course, this could mean adjustments to the hearing dates that are currently scheduled which would not result in an expeditious hearing.

23I note, as set out above, that many of the allegations in the RFOP pre-date the date that the applicant filed his Reply which suggests that the applicant had been aware of them for a lengthy period of time before the hearing commenced. Finally, I am particularly concerned that prior to the January 30, 2012 hearing date, the applicant did not advise the Tribunal that he would be seeking to rely upon the allegations contained in his RFOP during the hearing.

24Accordingly, the applicant’s request to rely upon the allegations as set out in his RFOP is denied. When the hearing commences, it will be based upon the allegations as set out in the Application and the Reply.

Witnesses

25At the March 5, 2012 hearing, the applicant advised that he intends to call Jason Bell, Ajay Ramakrakirshna, Maria Mello, Graciela Chatter, Wilson Zhou and Andrew Jayashanker as witnesses. The applicant described the evidence to which they would testify and stated that he had not prepared his witnesses as he was not aware that he could speak with his witnesses although he had provided some brief statements signed by his proposed witnesses. Some of these individuals had previously been identified as a witness for the applicant and in the January 2012 CAD the Tribunal had indicated that it was concerned that not all of these witnesses had first-hand information about the allegations.

26At the March 5, 2012 hearing, the respondent undertook to call Mr. Bell as a witness and to provide a witness statement and any documentation pertaining to his testimony. Accordingly, the respondent shall deliver to the applicant and file with the Tribunal a witness statement for Mr. Bell and provide any documentation pertaining to his evidence that has not already been filed. The respondent will call Mr. Bell as a witness and the applicant shall have the opportunity to cross-examine Mr. Bell.

27Based upon the description of the proposed testimony of the applicant’s witnesses, I have determined that the evidence of Ms. Mello, Ms. Chatter and Mr. Zhou is based upon first-hand information and is relevant to the issues that will be addressed during the hearing. Accordingly, the applicant is directed to immediately deliver to the respondent and file with the Tribunal revised witness statements of these potential witnesses.

28I do not find that the proposed evidence of Mr. Ramakrakirshna to be first-hand information, but rather based upon a comment that Mr. Bell said to him. Since Mr. Bell is testifying, the applicant will have the opportunity to cross-examine Mr. Bell on this point. If necessary, Mr. Ramakrakirshna can be called as a witness in reply.

29The hearing will continue on the next scheduled dates with, as discussed with the parties, the applicant testifying first.