Khan v. 1742248 Ontario Inc., 2014 HRTO 1008

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sachchu Khan Applicant

-and-

1742248 Ontario Inc. O/A The Harbord Room, Cory Vittelo, Curt Martin and Phil Walters Respondents

DECISION

Adjudicator: Douglas Sanderson Date: July 10, 2014 Citation: 2014 HRTO 1008 Indexed as: Khan v. 1742248 Ontario Inc.

WRITTEN SUBMISSIONS

Sachchu Khan, Applicant Self-represented

1742248 Ontario Inc. O/A The Harbord Room, Cory Vittelo, Curt Martin and Phil Walters, Respondent Sunira Chaudri, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of place of origin, sex and sexual solicitation or advances.

2The hearing of this matter commenced on January 27, 2014. After dealing with a preliminary issue at the commencement of the hearing, the issue of the parties' proceedings before the Employment Insurance Board of Referees (the "Board") arose. The organizational respondent appealed a decision of the Canada Employment Insurance Commission (the "Commission") to accept the applicant's claim for Employment Insurance ("EI") benefits, despite the fact that the applicant voluntarily resigned his employment. The applicant's position before the Commission and the Board was that he had no choice but to resign given the physical and verbal harassment to which the respondents subjected him, which is also the position he takes before this Tribunal. The Board upheld the Commission's decision to allow the applicant's claim for EI benefits. The applicant filed the Board's decision with the Application. The Board's decision indicates that the applicant made the same allegations of sexual harassment, sexual solicitation and harassment because of his place of origin before the Board as are set out in the Application. On the face of the Board's decision, it also appears that the organizational respondent presented the same evidence in its appeal before the Board as the respondents' Response indicates they will present to this Tribunal. The Board made the following ruling:

The Commission stated that it is virtually impossible for an outside party such as the Commission who was not present in the workplace to prove or disprove that verbal or sexual harassment took place. The Board agrees with the Commission. During this hearing the Board heard testimony from both parties. The Board assigns equal weight to the direct evidence of both parties. The Board gives the benefit of the doubt to the claimant

The Board finds as a fact that the claimant had just cause for voluntarily leaving his employment.

Benefit of the doubt

49 (2) The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced and in the case at hand, the claimant's statement was accepted as credible. While it is not unusual or uncommon for a person or persons accuse of harassment to deny the allegations, the Commission must when faced with conflicting information and statements, give the benefit of the doubt to the claimant.

3I advised the parties that the Board's decision could be read to indicate that it found the parties' evidence to be equally credible – in effect a tie – and granted the applicant EI benefits because section 49(2) of the Employment Insurance Act, S.C. 1996, c. 23 required the Commission to give the applicant the benefit of the doubt in these circumstances. Accordingly, I advised the parties that section 45.1 of the Code may apply because the Board arguably made a find of fact regarding the same circumstances as are before this Tribunal in this Application (i.e., in that the parties' evidence was equally balanced). Section 45.1 states as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

I noted that the applicant has the onus of proof before this Tribunal; therefore, a finding that the parties' evidence was afforded equal weight or was equally credible following the hearing of this Application would result in dismissal of the Application.

4I advised the parties that, in the circumstances of this Application, my view was that the question of whether the Application, in whole or part, should be dismissed pursuant to section 45.1 was an issue that the Tribunal must address. After hearing from the parties about how best to do so, I determined that the best procedure would be to afford the parties an opportunity to make written submissions on the issue. I asked respondent's counsel, Ms. Chaudhri, to proceed first, and she agreed. Ms. Chaudhri also submitted that production of the entire docket regarding the appeal to the Board would be helpful in establishing the nature and scope of the issues before the Board. I agreed with this submission and directed the respondent's to produce the docket to the Tribunal and the applicant along with their submission; she agreed.

5The respondents filed thorough submissions regarding the application of section 45.1 to the unique circumstances arising in this matter. The applicant also filed submissions, but these submissions did not address section 45.1 and I will not record them in this decision.

The Respondents' Submissions

6The respondents presented a detailed comparison of the allegations the applicant made to the Commission and Board with those made in his Application and submitted that the allegations in the EI proceedings and those before this Tribunal are identical. The respondents also described the evidence they presented to the Commission and Board. In summary, the respondents stated that the applicant resigned because the organizational respondent denied his request for a pay raise and denied the applicant's allegations of sexual harassment and discrimination.

7The respondents also summarized the investigation and decisions of the Commission and the Board. The respondents noted that the Commission gave the benefit of the doubt to the applicant in the face of conflicting evidence as follows:

In the present case, the employer had not provided copies of the text messages at the time the decision was made for the Commission to review, however, the claimant has explained his reasons for asking for a raise as he knew it would be denied and this would give him a non-confrontational way out. It is virtually impossible for an outside party such as the Commission who was not present in the workplace to prove or disprove that verbal or sexual harassment took place and in the case at hand, the claimant's statement was accepted as credible. While it is not unusual or uncommon for a person or persons accused of harassment to deny the allegations, the Commission must when faced with conflicting information and statements, give the benefit of the doubt to the claimant.

8The respondents submitted that the Board accepted the Commission's analysis and assigned "equal weight to the direct evidence of both parties", as is set out in paragraph 2, above. The respondents submitted that the Board was required to give the benefit of the doubt to a claimant where the evidence of the parties is equally balanced, pursuant to section 49(2) of the Employment Insurance Act, but that the applicant bears the onus of proof before the Tribunal. The respondents submitted that the Board found that the parties' evidence was afforded equal weight and was equally credible; therefore, the applicant's evidence did not meet the threshold to be successful in his Application before the Tribunal.

9The respondents submitted that the Tribunal has found that a hearing before the Board is a "proceeding" for the purposes of section 45.1.

10The respondents relied upon on the Supreme Court of Canada decision in British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 ("Figliola"), which interpreted section 27(1)(f) of the British Columbia Human Rights Code (the "B.C. Code"), which is nearly identical to section 45.1 of the Code. The respondents noted that the Court set out the analysis for assessing whether the substance of a complaint has been appropriately dealt with in another proceeding as follows:

"...whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process mirrored the one the Tribunal prefers or uses itself..." (at paragraph 37).

The respondents also submitted that the Tribunal has found that the analysis adopted in Figliola applies in Ontario and binds the Tribunal.

11The respondents also submitted that the Tribunal must consider the Supreme Court of Canada's decision in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 ("Penner") in determining whether to exercise its discretion under section 45.1. The respondents submitted that in Penner, the majority of the Court stated that unfairness in applying the doctrine of issue estoppel may arise out of the unfairness of the prior proceeding or, where the prior proceeding was conducted fairly, but it is nonetheless unfair to use the results of the prior proceeding to preclude the subsequent claim. Penner dealt with the issue of whether the doctrine of issue estoppel precluded a complainant from pursuing a civil action in Court because of the findings in the Ontario police officer discipline process, following a complaint under the Police Services Act, R.S.O. 1990, c. P.15, as amended. The respondents noted that the Court concluded that it would be unfair to use the results of the police disciplinary process to preclude Mr. Penner's civil action for the following reasons:

• there were several provisions in the PSA that expressly contemplate parallel proceedings (paras. 50 to 52)
• the reasonable expectations of the parties would not be that a disciplinary hearing where Mr. Penner had no access to a personal remedy would preclude a civil action for substantial damages (paras. 53 to 58)
• Mr. Penner had no "financial stake" in the disciplinary hearing (paras. 59 to 61)
• there were important policy considerations at stake in these circumstances, namely the risk of adding to the complexity and length of disciplinary proceedings by attaching undue weight to their results through applying issue estoppel or the significant risk that potential complainants will simply not come forward with public complaints in order to avoid prejudicing their civil actions (paras. 62 to 63)
• applying issue estoppel against Mr. Penner would have the effect of permitting the chief of police to become the judge of his own case, with the result that his designate's decision had the effect of exonerating the chief and his police service from civil liability, which the majority regarded as a serious affront to basic principles of fairness (paras. 64 to 68).

12The respondent submitted that the Tribunal reconciled the approaches set out in Figliola and Penner in its decision in Claybourn v. Toronto Police Services Board, 2013 HRTO 1298 ("Claybourn"). The respondents submitted that Penner dealt with a very narrow set of circumstances and, as a result, the considerations in Penner will apply at the Tribunal level in very rare circumstances. The respondents submitted that these considerations, set out in paragraph 11, above, do not apply to this Application. Accordingly, the respondents submitted that the Tribunal should apply the principles enunciated in Figliola, which emphasize the public interest in the finality of decisions and the dangers posed by the re-litigation of issues.

13The respondent submitted that the applicant's allegations of discrimination and sexual harassment were considered by the Board in coming to its decision and that the Tribunal should exercise its discretion under to section 45.1 to dismiss the Application.

Analysis and Decision

14The Tribunal has found that an appeal to the Board of Referees is a proceeding for the purposes of section 45.1. See, for example, Yakymova v. Slovenian Linden Foundation, 2012 HRTO 1075, Caldeira v. 2068006 Ontario, 2010 HRTO 920, Mustafa v. Mississauga (City), 2010 HRTO 2477 and Islam v. Ball, 2009 HRTO 2164.

15Accordingly, the issue is whether the Board appropriately dealt with the substance of this Application. In my view, the respondents correctly set out the framework for analysing this issue in their submissions, as summarized above. I also agree with the respondent that the allegations of discrimination and sexual harassment the applicant made to support his claim for EI benefits are the very same allegations that the applicant seeks to advance before this Tribunal. Section 29(c) of the Employment Insurance Act sets out the circumstances that may support a finding that an employee had just cause for voluntarily leaving employment. The circumstances include:

(i) sexual or other harassment;

(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, R.S.C. 1985, c H-6;

(xi) practices that are contrary to law

Accordingly, the Board was required to assess whether the applicant was justified in resigning his employment because he was subject to human rights violations.

16The Board found in favour of the applicant on the basis of section 49(2) of the Employment Insurance Act, which states as follows:

The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced.

17There is no doubt that the Board found the parties' evidence to be equally balanced and noted that the Commission accepted the applicant's evidence as credible. In the context of an appeal under the Employment Insurance Act, a finding that the parties' evidence was "equally balanced" was sufficient to dispose of the matter. The Board adopted the Commission's assertion that "...the Commission must when faced with conflicting information and statements, give the benefit of the doubt to the claimant." In other words, the Board did not resolve the conflict in the evidence and gave the applicant the "benefit of the doubt" pursuant to section 42(9) of the Employment Insurance Act to decide the issue of the applicant's entitlement to benefits. The Board also adopted the Commission's assertion that it "...is virtually impossible for an outside party such as the Commission who was not present in the workplace to prove or disprove that verbal or sexual harassment took place..." In my view, these comments indicate that the Board's analysis of the evidence before it ceased once it was presented with conflicting evidence and did not – and was not required to – go further to resolve the conflict in the evidence. Consequently, the Board did not in my view need to and it is not clear they did in fact make a finding of fact regarding whether the applicant was subject to sexual harassment and discrimination. In these circumstances, I cannot find that the Board appropriately dealt with the issue of whether the applicant was subject to sexual harassment or discrimination.

18As the respondent noted, the Tribunal in Claybourn applied the Supreme Court's decision in Penner. The Tribunal found that in deciding whether a human rights claim ought to be dismissed pursuant to section 45.1, the Tribunal must consider not only whether the issue in before the Tribunal was decided in another proceeding, but also whether it would be unfair in all of the circumstances to dismiss all or part of an application in light of the other proceeding, taking into account the nature of the other proceeding, the applicant's stake in it, and the parties' reasonable expectations about the impact the prior proceeding would have on their broader legal rights.

19In Figliola, the Court stated that one of the principles underlying the purpose of section 27(1)(f) of the B.C. Code (and therefore section 45.1 of the Code) was that the method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (at paragraph 34). The Tribunal has applied this principle in its decisions applying section 45.1. See, for example, Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443 at paragraphs 25-26. Under section 115 of the Employment Insurance Act, as it was at the time of the Board's decision, the parties could appeal the decision to an Umpire. An Umpire's decision could be judicially reviewed under the Federal Courts Act, but was not subject to appeal to or review by any court. In this case, however, the Board's finding that the parties' evidence was equally balanced resulted in a victory for the applicant and he had no basis for an appeal. In my view, it would not be within the reasonable expectation of the parties that an applicant would be required to pursue an appeal or judicial review of a decision favourable to him or her (assuming one is entitled at law to appeal a favourable decision) in order to preserve his or her right to file an Application to this Tribunal. Consequently, I also conclude that it would be unfair to exercise my discretion to dismiss the Application under section 45.1.

Order

20The Application shall proceed and shall be scheduled for hearing.

21The parties are reminded of their obligations under Rules 16 and 17 to file with the Tribunal and deliver to the other party all documents they intend to rely upon, a witness list and a summary of the evidence of each witness in advance of the next hearing day.