HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tarek Ibrahim
Applicant
-and-
Hilton Toronto
Respondent
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Ibrahim v. Hilton Toronto
APPEARANCES
Tarek Ibrahim, Applicant
Janina Fogels, Counsel
Hilton Toronto, Respondent
Michelle Alton, Counsel
1This is a second Application (“the Application”) filed by the applicant under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In this Application, he alleges discrimination with respect to employment because of family status, marital status, and reprisal. The applicant is a bargaining unit employee and is represented in the workplace by Unite Here Local 75 (“the union”). Notice of the Application was provided to the union, but it has not filed a Request to Intervene, or otherwise participated in this proceeding.
2The Application was held in abeyance while the parties waited for the Tribunal to release a decision about an application previously filed by the applicant (“the first Application”). Once the Decision was issued in the first Application (2013 HRTO 673), the Tribunal re-activated the Application upon request of the applicant in an Interim Decision dated June 3, 2013 (2013 HRTO 981).
3A Notice of Hearing was issued by the Tribunal, dated June 7, 2013, scheduling the hearing for January 27, 28 and 29, 2014. As there were a number of outstanding issues between the parties, pursuant to a Case Assessment Direction (“CAD”) dated October 29, 2013, the Tribunal scheduled a case management conference call to address the outstanding issues. This call was held on November 18, 2013 and both parties participated. A summary of the parties’ positions is set out below in relation to each issue.
4The issues that were identified in the CAD were the following:
Whether or not the Tribunal would permit the applicant to amend his Application as requested in the RFOPs, the respondent’s position to this, and a possible timetable for the amended Application, Response and Reply to be filed;
The respondent’s submission that the Tribunal should declare the applicant a vexatious litigant;
The respondent’s disclosure of the applicant’s Application in another proceeding in which the respondent is involved;
The applicant’s written communication to the Tribunal about the Decision in his first application being outstanding and an issue pertaining to his second Application, on which he did not copy the respondent; and,
Amended hearing dates.
Amending the Application
The Applicant’s Submissions
5In his four outstanding Requests for Order During Proceedings (“RFOP”), the applicant seeks to amend his Application by relying upon new allegations that are described in each RFOP.
6During the call, the applicant’s counsel stated that she intended to file an amended Application in which the new allegations would be condensed and incorporated into one document. She identified allegations from the August 17, 2012 RFOP which would not be included in the amended Application. Specifically, these were: from page 3, the paragraph pertaining to August 7 and an allegation about Lani; and from page 4 the allegation about Red. During the call, she also identified two new issues that she intended to include in any amended Application. Those were: the issuance of the applicant’s last paycheque and TTC metropass, and his application for EI benefits.
7As to whether or not the allegations are linked to a specific Code ground, the applicant submits that such a link may not be very obvious. However, as the Application is based upon reprisal, any backlash or negative repercussions that the applicant experienced in the workplace could amount to a violation of the Code.
The Respondent’s Submissions
8The respondent submits that a number of the applicant’s allegations do not relate to a prohibited ground and fail to make a prima facie case of discrimination under the Code. Further, the respondent notes that a number of allegations, such as the allegations in the August 27, 2012 RFOP pertaining to the “blue energy cards” from January 2012 and the allegations pertaining to Red and Valeri, were raised during the hearing of the first Application. The respondent could not comment about the new allegations given that were raised for the first time during the call.
9The respondent also alleges that it would have been more appropriate for the applicant to file a grievance under the collective agreement, and pursue his rights under the collective agreement, especially his termination, rather than filing another Application with the Tribunal. The applicant is essentially challenging his termination, the respondent submits, and whether or not he was terminated for just cause is not within the jurisdiction of the Tribunal.
Analysis
10The Tribunal has considered in a number of other cases whether or not to permit an applicant to amend his or her Application. As set out in Ibrahim v. Hilton Toronto, 2012 HRTO 740 at para. 16:
In 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.
11In this Application, there were a number of RFOPs filed by the applicant seeking to amend the Application that were filed before the Tribunal scheduled the file for hearing and many allegations in those RFOPs are new and responsive to ongoing issues in the workplace, culminating in the applicant’s termination. However, some of the allegations pre-date the Application and some were raised during the hearing of the first Application.
12Like other unionized employees, the applicant had the opportunity to file a grievance or grievances about the issues in the Application and his subsequent allegations. However, the Code permits a unionized employee to file an Application under the Code. In situations where both a grievance and an Application are filed about the same fact situation, the Tribunal has deferred the Application pending completion of the grievance and arbitration process. See, Minogue v. The Peel District School Board, 2013 HRTO 1919. It does not appear that the applicant filed a grievance as neither party has requested that the Application be deferred pending the conclusion of the grievance process.
13I am prepared to allow the applicant to file an amended Application. In light of the number of requests to add new allegations made by the applicant, rather than addressing each new allegation and ruling individually on whether the amendment is permitted, as the applicant now has counsel, I direct the applicant to follow the following principles in submitting an amended Application:
a. Any amended allegations must be submitted as a document separate from the Application that has been filed and entitled “Amended Application” and is not to include allegations already made in the Application;
b. Any allegations that were ruled to be untimely and/or inadmissible in the hearing of the first Application, and/or addressed in previous Interim Decisions issued in relation to this Application, should not be included in the amended Application;
c. Any allegations upon which the applicant’s counsel represented during the call as not being pursued should not be included in the amended Application; and,
d. Any allegations that have not been identified in the outstanding RFOPs or during the call are not to be included in the amended Application.
14Further, in preparing the amended Application, the applicant ought to consider whether his allegations are timely and if not, under separate cover, he must provide an explanation for his delay in raising such allegations in light of sections 34(1) and (2) of the Code.
15Upon receipt of the amended Application, the respondent will have until January 6, 2014 to file an RFOP, if any, identifying any concerns with the allegations in the amended Application.
16Based upon the proposed timetable discussed during the call, the applicant shall file his amended Application with the Tribunal, copying the respondent, by December 19, 2013. The respondent shall file its amended Response, responding only to the new allegations in the amended Application, with the Tribunal, copying the applicant, by January 13, 2014. The applicant shall file an amended Reply, if necessary, responding only to the amended Response, with the Tribunal, copying the respondent, by January 20, 2014. If the respondent has filed a RFOP after the amended Application is filed, adjustments may need to be made to the timetable following the date the RFOP is filed.
should the tribunal declare the applicant to be a vexatious applicant?
The Respondent’s Submissions
17The respondent submits that the applicant has attempted to re-litigate issues that have already been determined by the Tribunal both in this Application and in the first Application. It requests that the Tribunal declare the applicant a vexatious litigant or find that he abused the Tribunal’s processes by looking at the applicant’s actions between the two Applications that he has filed against the respondent. It seeks this declaration despite the applicant now being represented by a lawyer from the Human Rights Legal Support Centre (“HRLSC”) as the applicant is the directing client. In this regard, it also requests that the Tribunal require the applicant to seek the Tribunal’s permission to file a new application or take steps in the current Application as a gatekeeping role. The respondent relies upon Rule A8.2 of the Tribunal’s Rules of Procedure.
18The respondent submits that it has been required to prepare responses over and over again to the same issues in multiple proceedings in which it has incurred costs in both time in preparing these responses and money. It notes that the Tribunal does not have the jurisdiction to award monetary costs. The respondent asserts that when the applicant was not permitted to rely upon a specific allegation, that allegation appeared in an application filed by one of the applicant’s co-workers with similar language to that used by the applicant and without the applicant’s co-worker appearing to observe the allegation first hand. Further, the respondent submits that in some situations the applicant raises an allegation the second time without providing any dates to circumvent a ruling addressing the allegation the first time he raised it.
The Applicant’s Submissions
19The applicant denies that he is raising the same allegations again and again in his materials before the Tribunal. Instead, he submits that he was trying to navigate the Tribunal’s direct access system, as a self-represented applicant, while addressing “real time” problems that were occurring in his workplace, including a suspension and termination, while his first Application was ongoing and while he waited for the Decision.
20In some situations, like the November 15, 2012 RFOP, what the applicant filed was the same as his previous RFOP except that it added the remedy of reinstatement. The applicant’s counsel could not comment about the applicant’s reliance upon allegations that were raised and ruled upon in the first Application as she was not involved in that Application. She notes that even if the applicant did do this, it was limited to a couple of allegations, demonstrates that the applicant was desperate about the situation he was in, and the applicant is not relying upon those allegations. With respect to similar allegations appearing in his co-worker’s application, the applicant submits that this demonstrates that the repetition is minimal and that the same events are troubling a number of employees. Further, a self-represented applicant needs to tell his or her story several times to provide context for subsequent allegations.
21The applicant notes that since he was cautioned by the Tribunal in an earlier Interim Decision and by Registrar’s letter not to file anything further, he has complied with that direction. The RFOPs that are outstanding do not reach the level of vexatiousness that the Tribunal has found in other cases.
Analysis
22I do not find that the applicant is a vexatious litigant. I do not find the circumstances of this case similar to the situations described in either Vizcaya v. UJA Federation of Greater Toronto, 2013 HRTO 1142 or Shi v. Holcim (Canada) Inc., 2013 HRTO 1865, cases relied upon by the respondent.
23In Vizcaya, the applicant had filed four applications with the Tribunal, in which he alleged that the respondents discriminated against him by not permitting him to attend an event or future events. Two of the applications proceeded by separate summary hearings which were ultimately dismissed by the Tribunal as was a reconsideration request in one of them. In the third application, after the applicant failed to attend the hearing, the application was dismissed as was a reconsideration request of all the previous decisions. The Tribunal declared that applicant a vexatious litigant and ordered that he was required to seek leave of the Tribunal if he wished to file future applications.
24In Shi, the applicant had filed three applications, as well as reconsideration requests, all based upon the same factual background. The applicant admitted that her three applications were essentially the same, but challenged the Tribunal’s decisions dismissing her previous applications. The Tribunal dismissed her third application finding, at para. 25, that the applicant had essentially filed the same application three times with the Tribunal. It declared her to be a vexatious litigant and stated that she would be required to obtain permission from the Tribunal to file further applications against the respondents.
25In Shi, at para. 19, the Tribunal stated that to prevent an abuse of its processes, the Tribunal would typically consider “…the frequency and number of applications filed without merit or apparent merit, as well as the conduct of the party”. In this case, the applicant has filed two Applications; the first Application was upheld, in part, as set out in the Decision. The second Application addresses ongoing workplace issues, with the more recent RFOPs being about his suspension and ultimate termination. This is different from the situation in Shi in which all the applications were based upon the same factual situation.
26I understand the respondent’s concerns that it has had to respond to some of the same allegations many times and in the proceedings for both the first Application and this Application. This is understandably time consuming for which the respondent has incurred costs. The Tribunal does not have the jurisdiction to award costs. See Dunn v. United Transportation Union, Local 104, 2008 HRTO 405, as cited in Shi, at para. 24. However, it appears that the applicant did so while he was self-represented. He is now represented by the HRLSC and given the caution set out in para. 13 above in relation to filing an amended Application, I would expect that the allegations upon which the Tribunal has ruled to be inadmissible and/or untimely in either this Application or the first Application will not be raised again by the applicant.
Hearing dates
27During the call, the parties discussed alternative hearing dates as well as an amended timetable for their disclosure obligations in the event that the applicant was permitted to amend his Application. Given the rulings made above, the Tribunal orders the following:
a. the hearing dates scheduled for January 27, 28, 29, 2014 are cancelled. The Tribunal will schedule three hearing days from the following days: March 4, 5, 18, 19 and 24, 25, 2014;
b. the December 13, 2013 deadline as set out in the Notice of Hearing is changed to February 10, 2014.
28Of course, with an amended Application, amended Response, and amended Reply, documentation that has not been previously exchanged may become relevant. The respondent identified some documentation, such as that pertaining to the applicant’s alleged family status, that it identified as being arguably relevant to which it would seek production if it was not disclosed. The respondent confirmed during the call that it does not concede the applicant’s “family status” based upon the allegations in the Application. The Tribunal would expect that with amended pleadings the parties will comply with their disclosure obligations. Any issues about compliance can be raised by either party in advance of the hearing.
the respondent’s disclosure of the application
The Applicant’s Submissions
29The applicant alleges that, without his consent, the respondent inappropriately disclosed a copy of his Application to parties involved in another proceeding before the Tribunal in which the respondent is also a party but the applicant is not. The applicant is concerned about this disclosure because it contains, amongst other information, confidential personal information and medical information. The applicant seeks various relief from the Tribunal as a result of the respondent’s inappropriate disclosure, but notes that the other applicant has not received notice of this issue and has not had an opportunity to participate.
The Respondent’s Submissions
30The respondent denies that it acted inappropriately. Instead, it says that it disclosed the Application to respond to allegations in an application in another Tribunal proceeding and to establish that the applicant’s issue was raised in the other application. The respondent disputes that medical information is contained within the Application. It is prepared to redact the applicant’s personal information from the copy that is filed in the other Tribunal proceeding.
Analysis
31In the CAD, the Tribunal queried whether the applicant should be filing a Request to Intervene in the other Tribunal proceeding. After hearing the submissions of the parties, the Tribunal determines that this issue is best addressed, if the applicant intends to pursue it, by the applicant filing a Request to Intervene in the other proceeding. This would give the other applicant, and the other parties, the opportunity to receive notice of the issue and an opportunity to respond. It would also give the Tribunal the ability to provide relief to the applicant should it find his concerns have merit as the issue pertains to another proceeding rather than his Application before the Tribunal.
the applicant’s communication with the tribunal
The Respondent’s Submissions
32The respondent seeks production of a written communication that the applicant sent to the Tribunal pertaining to the first Application as well as various Interim Decisions and orders that had been issued in this Application (“the complaint letter”). The respondent made this request in written communication to the Tribunal dated August 16, 2013. The respondent does not know the content of the complaint letter, but submits that it is entitled to it as Rule 1.12 of the Tribunal’s Rules requires a party to copy the other party on its communications with the Tribunal.
The Applicant’s Submissions
33The applicant agrees that it communicated with the Tribunal without copying the respondent. The communication pertained to the Decision in the first Application being outstanding as well as an allegation of bias in the Application pertaining to interim decisions and orders that were issued by one of the Vice-chairs. He submits that the communication was sent in accordance with the Tribunal’s Policy on Public Complaints, which does not require a party to copy the other party, and it does not fall under Rule 1.12. The applicant submits that the issue is moot as he did not follow up about his concerns, when the Tribunal invited him to do so, and on which the Tribunal copied the respondent. It is not part of this Application, the applicant submits, he does not plan to rely upon it for any purpose, and the Decision has been issued.
Analysis
34Pursuant to Rule 1.12 of the Tribunal’s Rules, “All written communications with the Tribunal, including e-mail correspondence, must be addressed to the Registrar, with a copy delivered to all other parties”. However, the Tribunal’s Policy on Public Complaints (“the policy”) provides an email address different from the Registrar’s and a contact source different from the Registrar. The policy does not specifically state that the complainant is required to copy the other party.
35As stated during the call, a copy of the complaint letter is not included in this Application file. I am not satisfied that the applicant was required to copy the respondent on the complaint letter pursuant to Rule 1.12 as the respondent has submitted. In my view, given that there is a specific policy addressing complaints, which is not set out in the Rules and which does not require a party to copy the other party on a complaint, I am not satisfied that the applicant was required to copy the respondent on the complaint letter pursuant to Rule 1.12 as the respondent submits. If it subsequently appears that the complaint letter is an arguably relevant document and has not been disclosed by the applicant, then this issue can be revisited.
order
36The Tribunal orders the following:
The applicant is to file any amended allegations to his Application by December 19, 2013 within the parameters set out in para. 13 above;
If the respondent is to file a RFOP pertaining to the amended Application, then this must be filed by January 6, 2014;
The respondent is to file an amended Response by January 13, 2014;
The December 13, 2013 deadline as set out in the Notice of Hearing is changed to February 10, 2014; and,
The January 27, 28 and 29, 2014 hearing days are cancelled and the Tribunal will schedule three hearing days from March 4, 5, 18, 19 and 24, 25, 2014.
Dated at Toronto, this 6th day of December, 2013.
“Signed by”
Alison Renton
Vice-chair