Vilner v. Zale Canada Co., 2013 HRTO 324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karina Vilner Applicant

-and-

Zale Canada Co. and Donna Medd Respondents

A N D B E T W E E N:

Afat Ahmadli Applicant

-and-

Zale Canada Co. and Donna Medd Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: February 26, 2013 Citation: 2013 HRTO 324 Indexed as: Vilner v. Zale Canada Co.

WRITTEN SUBMISSIONS

Karina Vilner, Applicant ) Self-represented Afat Ahmadli, Applicant ) Self-represented Zale Canada Co. and Donna Medd, Respondents ) Lisa Washington-Watts, Counsel

INTRODUCTION

1Applicant Vilner filed an Application on July 10, 2012, alleging discrimination and reprisal with respect to employment on the basis of race, ancestry and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Applicant Vilner alleges that she was subjected to anti-Semitic behaviour and that the respondents failed to address the situation. The applicant further alleges she was mistreated and dismissed for complaining about the discrimination. The respondents filed a Response on September 17, 2012 denying the allegations of discrimination and reprisal. The respondents assert that the applicant’s concerns were fully investigated. The respondents allege that the applicant’s employment was terminated for cause, including breach of confidential information and poor performance.

3Applicant Ahmadli filed an Application on August 27, 2012, alleging discrimination and reprisal with respect to employment on the basis of ancestry, place of origin and ethnic origin. The applicant alleges that there was pervasive racism in the workplace and that the respondents failed to address the situation. The applicant alleges that she was treated unfairly and dismissed for complaining about the discrimination. The respondents filed a Response on October 17, 2012 denying the allegations of discrimination and reprisal and asserting that the applicant’s employment was terminated for accessing and disclosing confidential information about another employee.

4By way of Case Assessment Direction (“CAD”) dated February 5, 2013, the Tribunal directed the parties to file written submissions with respect to whether or not the Applications should be consolidated. This Interim Decision will address the issue of consolidation.

PARTIES’ POSITIONS

Applicants

5The applicants filed separate submissions opposing consolidation.

6While both applicants acknowledge that the Applications allege racism perpetrated by a certain group of the same co-workers and unlawful termination, the applicants argue that their cases are distinct because Applicant Vilner’s tenure of employment (5 years) was longer than that of Applicant Ahmadli (1.5 years). The applicants submit that their experiences of racial discrimination were unique because of their different ethnic backgrounds in that Applicant Vilner self-identifies as Jewish whereas Applicant Ahmadli identifies as Persian. Both applicants assert that their physical and emotional health would be negatively impacted if required to participate in a consolidated hearing of greater length. In addition, Applicant Vilner contends that it would be unfair and unduly burdensome to her if she is forced to attend a consolidated hearing which will likely be of a longer duration because Applicant Ahmadli requires an interpreter.

Respondents

7The respondents support consolidation. The respondents assert that there are common issues of law and fact in that both applicants were co-workers at the same store location and were dismissed on the same date as a result of the same incident. The respondents submit that, while there may be slight variances, the majority of the allegations are the same. The respondents contend the same witnesses will be called to testify in both matters, including the applicants giving evidence on behalf of each other. The respondents argue that separate hearings risks inconsistent results and give rise to added expense, time and inconvenience.

LEGAL PRINCIPLES

8Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

9In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

ANALYSIS

10The Tribunal’s CAD noted that these two Applications are filed by individuals who were co-workers against their former employer involving similar factual circumstances and allegations.

11The Applications were filed with the Tribunal approximately one month apart. Both Applications allege that that the applicants were subjected to racial discrimination by certain specific co-workers, that the respondent employer took inadequate steps to address the situation and that the applicants were contemporaneously dismissed as reprisal for objecting to the discrimination. Both Application narratives reference the other applicant co-worker as having knowledge of the alleged mistreatment experienced by the first applicant.

12In my view, the Applications should be consolidated and processed together. While Applicant Vilner alleges that her case is different because she worked for the respondent employer longer than Applicant Ahmadli, I do not consider this to be a salient factor given that many of the allegations deal with similar occurrences and people. There is no doubt that both applicants impugn the same co-workers as the perpetrators of the discrimination and that the alleged acrimony between the applicants and these co-workers as detailed in the Applications are analogous in nature and overlap in timeframe.

13It is noteworthy that the Tribunal does not automatically consolidate applications simply because the individual applicants are related or co-workers. The Tribunal must assess the specific circumstances of each matter to determine if sufficiently similar factual and legal claims exist that it is in the public interest to avoid a multiplicity of proceedings by hearing the cases together. The considerations include factors related to the efficiency and administration of the proceedings, including factors of delay, costs and convenience of the parties, witnesses and the Tribunal. In assessing the degree of duplication in the proceedings, the Tribunal will review the nature of the allegations, how closely connected are the parties and whether they will necessarily be witnesses in the other matter, the commonality of other witnesses and evidentiary issues, as well as the interplay of the factual circumstances of the cases. The Tribunal will also balance the interest of the parties and any concerns of prejudice. I note that the Lattey decision, above, highlights potential prejudice to respondents as a factor for consideration. Similar considerations with respect to prejudice may arise in relation to applicants and in such circumstances, as asserted in the present cases, the potential prejudice to applicants must also be taken into account.

14I disagree with the applicants that consolidation will unnecessarily protract the hearing process. I find that consolidation may assist in streamlining the cases and that it is fair and reasonable to proceed with the Applications together in order to save the parties’ and the Tribunal’s time and resources. Given the underlying facts and overlapping issues, particularly since the alleged wrongful termination involved both applicants in the same incident, I find that it is more efficient to hear the Applications together. Consolidation avoids duplicative proceedings and prevents inconsistent findings of facts surrounding the same events.

15I appreciate the applicants’ concern that their cases are distinct to the extent that they were allegedly subjected to different types of racism because they are different ethnicities. However, consolidating the Applications does not detract from their respective narratives and each applicant will be able to address her own individual experience about how the alleged discrimination manifested and the alleged effects. In addition, the number of potential witnesses that may be called in both matters, including the fact that Applications expressly indicate that each applicant has evidence regarding the other’s claims, militates in favour of consolidation.

16While the applicants allege that their health will be compromised by joining these Applications, neither has presented any medical documentation of the extent of their needs or in support of their position, nor have they addressed why accommodation, if necessary, would not alleviate their concerns.

17In summary, it appears from a review of the parties’ pleadings that many of the facts, legal issues, oral and documentary evidence will be the same or substantially similar in both cases. Consolidating the Applications will likely relieve the parties and their witnesses from having to attend at two separate hearings. I find that the circumstances of these Applications present a compelling public interest to avoid multiplicity of proceedings, including balancing considerations of expense, convenience, resources and the risk of inconsistent results. Furthermore, there was no evidence that consolidating the Applications together would result in any significant prejudice to any party.

18Accordingly, the Applications are consolidated.

19I am not seized of this matter.