HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jafferali Jaffer

Applicant

-and-

Boehmer Box

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: January 22, 2013

Citation: 2013 HRTO 107

Indexed as: Jaffer v. Boehmer Box

WRITTEN SUBMISSIONS

Jafferali Jaffer, Applicant ) Self-represented

Boehmer Box, Respondent ) Allen V. Craig, Counsel

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, on November 15, 2012, alleging discrimination with respect to employment on the basis of race, colour, disability and age.

2On November 26, 2012, the Tribunal forwarded a copy of the Application and a Notice of Application to the respondent and directed the respondent to file its Response by January 7, 2013.

3On December 21, 2012, the respondent filed a Request for an Order During Proceedings (“Request”) asking the Tribunal for an extension of time to file its Response on the basis that it required particulars in order to file a Response. The respondent requests that the Tribunal order the applicant to provide particulars because the applicant’s description of the alleged actions does not establish a nexus to the alleged grounds of discrimination. The respondent submits that absent particulars it is significantly prejudiced with respect to fulfilling its statutory responsibility to file a Response.

4On January 15, 2013, the applicant filed a response to the Request. The applicant did not provide further details regarding his allegations. Rather, the applicant requests that, in order to be more specific on the matter, the Tribunal provide him with an opportunity to explain his position and present his documentation in person.

DECISION

5The respondent’s request for particulars is denied at this time.

6I do not agree with the respondent that the information provided by the applicant regarding his concerns is so insufficient that the respondent cannot meaningfully respond to the Application. I find that there is an adequate amount of detail in the Application for the respondent to discern the allegations of a breach of the Code and, therefore, the issues that need to be answered.

7The Tribunal has repeatedly held that, absent exceptional circumstances, a respondent is required to file a completed response prior to raising preliminary issues, such as requests for particulars or disclosure: Glynn v. Lowe’s Companies Canada, 2009 HRTO 1180; Ugolini v. Salvation Army Barrie, 2009 HRTO 1801; Asefa v. Can-Am Logistics, 2010 HRTO 1531; and Rose v. Toronto Police Services Board, 2011 HRTO 1784.

8In Miga v. Arcelor-Mital Dofasco, 2012 HRTO 619, the Tribunal stated that the purpose of particulars is to alert responding parties and the Tribunal as to what alleged facts and legal issues give rise to a breach of the Code. When a respondent challenges the sufficiency of particulars in an application prior to filing a response, the question the Tribunal must decide is whether or not the application is so deficient of information about the alleged facts and legal issues which trigger the alleged Code violations that the respondent is unable to comply with its obligation to file a response.

9In the present case, the Application Form 1 narrative appears to make the following allegations and provides the following information:

• The applicant alleges discrimination in employment on the basis of race, colour, disability and age;
• The date of the last event was September 16 and 17, 2012 in Kitchener;
• Around noon on September 16, 2012, the applicant’s lead hand asked the applicant to a meeting. The applicant told the lead hand that he was getting late and that he could not leave his cleaning. The applicant followed the lead hand into the office. The lead hand abruptly informed the applicant there were changes and that he was required to put on a radio. The applicant alleges that this was very unusual because it was never previously offered to him even when he asked for it. The applicant alleges that lead hand’s tone and manner was a total surprise and an act of intimidation. The applicant accepted it, but his response was ‘high in voice’ as he was getting late to clean his machine and go home;
• The next day the H.R. Manager asked the applicant to the front office where the new CEO and the department manager were present. The department manager handed the applicant a termination letter;
• The applicant alleges intimidation, humiliation and lack of support existed throughout his employment. The applicant alleges that he was never promoted, respected or given a raise according to the work he was doing. The applicant alleges that there was no participation of any kind in any committee to raise issues of concern;
• The applicant alleges he has diabetes for the past 25 years and that is why he gets easily intimidated and stressed; and
• The applicant alleges that he is still waiting for his severance pay, as well as his first unemployment pay.

9The Application Form 1A appears to make the following allegations and provides the following information:

• The applicant alleges that he experienced discrimination in applying for various position in various different departments in the past 15 years. The departments had various requirements like cutting, finishing and prepress, etc.;
• The applicant alleges that he experienced discrimination in his rate of pay, being denied a promotion and being denied a workplace opportunity;
• The applicant alleges that he complained to the H.R. Manager many times and that there was an investigation with a negative outcome;
• The applicant alleges that he believes he was discriminated against on the basis of race and colour because there were various white young people working with him with same work duties who got promoted, more advancement and more money (machine operators);
• The applicant indicates that he is East Indian from Tanzania and 65 years of age;
• The applicant alleges that he believes he was discriminated against on the basis of disability possibly because he is diabetic;
• The applicant alleges that he believes he was discriminated against on the basis of disability because he never got promoted into a well-paying job or trained;
• The applicant alleges that he asked the respondent to meet his needs because stress was the main cause of his problem due to diabetes. The applicant alleges that he asked his H.R. Manager and department manager for a change;
• The applicant alleges that respondent did nothing to meet his needs and that he never got a chance to prove himself as it was all for their favourite people;
• The applicant lists his various medications and health problems; and
• The applicant alleges that he believes he was discriminated on the basis of his age because for the past 10 years only young people between the ages of 20 and 40 were hired. The applicant identifies the names of his friends in his age group that were also denied advancement.

10Based on my review of the Application, I do not accept that the applicant’s allegations are so vague, unclear or lacking in details that the respondent is completely prevented from responding to the claims.

11The applicant alleges that he was subjected to intimidation and differential treatment. The applicant alleges that he alerted human resources to his concerns and an investigation took place. The applicant detailed concerns with respect to promotion, pay, applications for positions in various departments and co-workers who the applicant perceived were favoured with respect to advancement and pay and those he believes were also the object of alleged age discrimination. The applicant perceives that his diabetes may be a possible reason for the discrimination. The applicant alleges that his employment was terminated following a meeting wherein he was subject to intimidation surrounding radio use and that, as of the date of filing the Application, he had not been paid severance monies.

12Given the foregoing information, I do not accept that the Application lacks such particularity that the respondent is unable to file a Response addressing many of the allegations. While the Application raises concerns spanning a number of years, the narrative does provide details of particular incidents occurring on September 16 and 17, 2012. I do not agree with the respondent that the content of this Application is so deficient that it is precluded from knowing the case to which it has to answer.

13Presumably, the respondent have some information from the applicant’s lead hand, department manager and human resources who were identified in the Application as being involved in the alleged events, in particular past complaints made by the applicant and the September 16th meeting and the issues of concern giving rise to the September 17th dismissal. As such, I find that the respondent should be able to file a Response setting out which allegations or incidents it accepts and/or denies or has a different perspective of the events.

14This case does not demonstrate the exceptional circumstances necessary to justify an order for particulars in advance to a respondent filing a response. At this stage of the proceeding, I find that the Application is sufficiently detailed for the respondent to indicate what aspects of the Application are accepted or disputed and to set out it general defence to the claim. I note that it remains open to the respondent to renew its request for particulars at a later point in the process. Consequently, the Tribunal denies the respondent’s Request for an order requiring particulars prior to the filing of its Response.

ORDER

15The respondent’s Request for particulars is denied. Within 35 days of the date of this Interim Decision, the respondent is required to file its Response (Form 2). In light of this order, the applicant’s request for an oral hearing at this stage is also denied.

16I am not seized.