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
WRITTEN SUBMISSIONS
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, the applicant alleges discrimination with respect to employment because of family status, marital status, and reprisal.
2In an Interim Decision dated December 6, 2013, 2013 HRTO 2028 (“the Interim Decision”), in addition to addressing a number of other issues between the parties, the Tribunal permitted the applicant to amend his Application by filing a new document entitled “Amended Application” in response to a number of a Requests for Order During Proceedings (“RFOPs”) that the applicant filed seeking to amend his Application with new allegations.
3In permitting the applicant to file an Amended Application, in addition to setting a timetable for materials to be filed, in the Interim Decision the Tribunal set out a number of principles which the applicant was required to follow in amending his Application. These were set out in paras. 13 and 14 as:
I 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.
Further, 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.
4The applicant filed his amended Application on December 19, 2013. The respondent filed a RFOP on January 6, 2014 in relation to paras. 7-12, 21-31, 67-69, 84-85, 105, 106-110, and 111-114 of the amended Application, alleging that they should be struck as they were contrary to the principles set out in para. 3 above. The applicant filed a Response to the RFOP on January 20, 2014. The submissions made by the parties have been carefully considered by the Tribunal.
Paras. 7-12
The respondent’s submissions
5The respondent submits that these allegations, which pertain to a blue energy card program, were raised during the hearing of the first Application, but found by the Tribunal at that time to be inadmissible. It asserts that these allegations pre-date the Application, but were not raised in it.
The applicant’s submissions
6The applicant asserts that the Tribunal determined these allegations to be inadmissible during the first hearing because the respondent had no advance notice of them, but that he could raise them in a subsequent Application. The applicant raised these allegations in his August 27, 2012 RFOP.
Analysis
7The Tribunal did rule, during Chef Pendergast’s cross-examination, that allegations pertaining to the blue energy card program in January 2012 were not admissible during the hearing of the first Application, because it was not previously raised during the applicant’s evidence and was a new area during Chef Pendergast’s cross-examination. However, allegations about the blue energy card program in January 2012 were made in the applicant’s August 27, 2012 RFOP. Since these were raised in a previous RFOP and are timely, the applicant can rely upon paras. 7-12 of the amended Application.
Paras. 21-31
The respondent’s submissions
8The respondent submits that the allegations contained in paras. 21-31 of the amended Application are vague, and that the applicant fails to provide necessary details such as dates and the names of persons involved. It seeks particulars of these allegations. Furthermore, the respondent submits that the allegation contained in para. 31, which asserts a violation of the applicant’s family status, does not indicate how the applicant’s family status was violated or how the allegations would result in a violation of his family status.
The applicant’s submissions
9The applicant submits that providing particulars for these paragraphs is unnecessary, redundant and would only serve to delay the matter further, to his detriment. He has included the names of those whom he has knowledge of. Where a person is unnamed, it is because the applicant is not certain of the person’s name.
Analysis
10The applicant has provided a number of dates in paras. 21, 28, 29, and, by extension, para. 30. I find that the information contained within those paragraphs are sufficiently particularized for the respondent to file an amended Response.
11However, the allegations contained in paras. 22 to 27 do not contain any dates and, I agree with the respondent, are too vague for the respondent to file an amended Response with respect to the allegations contained within them. If the applicant intends to rely upon these allegations, he is required to provide dates upon which these allegations are based by 4:30 p.m. on Wednesday, February 5, 2014, by emailing the respondent’s counsel and copying the Tribunal.
12With respect to para. 31, I find that this is a legal assertion or conclusion being advanced by the applicant that his family status has been violated based upon the allegations contained in paras. 21-30. Of course, whether or not the applicant’s family status has been violated is for the Tribunal to determine. Accordingly, I do not find that further particulars are required for this paragraph.
Paras. 67-69
The respondent’s submissions
13The respondent also seeks particulars for paras. 67 to 69, and submits that without these particulars the allegations in these paragraphs should be struck from the amended Application.
14With respect to para. 67, the respondent submits that the applicant failed to provide any information regarding this claim. Para. 68 does not reference the date or context of the allegations, as does para. 69.
The applicant’s submissions
15The applicant submits that the respondent is “somewhat disingenuous” in stating that it cannot properly respond to the allegations in these paragraphs given that the applicant has already produced on August 28, 2013 signed statements of witnesses in his arguably relevant documents. The applicant then identifies, in his submissions, the names of the individuals along with the tab number from his arguably relevant documents. The applicant notes that he is not required to identify, as this point, the names of all his witnesses and submits that he has provided sufficient information to which the respondent can respond.
Analysis
16Given the representation in para. 19 of the applicant’s submissions about the names of witnesses and their observations to the incidents alleged in para. 67, as well as noting the applicant’s point that he is not yet required to identify his witnesses, I decline to order further particulars with respect to para. 67 of the amended Application. I also note that the allegation contained in para. 67 is limited to one incident, and that a date is provided. The applicant can continue with this allegation.
17With respect to para. 68, I do order the applicant to identify any date(s) upon which he is relying with respect to this allegation. He is directed to identify those date(s) to the respondent’s counsel by email by 4:30 p.m. on Wednesday, February 5, 2014, copying the Tribunal.
18With respect to para. 69, in which the applicant claims that “there are many others as well, but it is not his job to keep records of these incidents”, I find that this is too vague for the respondent to respond to these allegations. If the applicant seeks to rely upon the allegation in para. 69, he is directed to provide further particulars, including dates, context and identities, to the respondent’s counsel by 4:30 p.m. on Wednesday, February 3, 2014, by email, copying the Tribunal. If the applicant fails to do so by then, para. 69 will be struck from the amended Application.
Paras. 84-85
The respondent’s submissions
19The respondent submits that these allegations are vague and clearly pertain to issues raised in his first Application, which is the subject of the Tribunal’s Decision for the first Application. The respondent requests that the Tribunal strike these allegations from the amended Application.
The applicant’s submissions
20The applicant submits that paras. 84-85 contain his observations about his indefinite suspension, and that he was unaware of anyone else being suspended in this fashion, as part of his feelings about having been suspended this way. It is, he alleges, part of his narrative and provided for context and comparison purposes.
Analysis
21I will allow para. 84 to continue to be part of the amended Application, but not para. 85. Para. 84 is comprehensive enough to describe the applicant’s alleged differential treatment and the applicant can continue with this allegation.
22However, para. 85, which asserts “Many other incidents of violence, sexual assault, harassment and discrimination have taken place with little, or no, investigation and/or consequences” is not just not sufficiently particularized, but it is too broad and could conceivably require the respondent to set out the disciplinary history of a number of employees over a significant period of time. I do not find that this would be warranted, or expeditious in these circumstances, particularly where the applicant has failed to particularize these incidents; accordingly, it is struck from the amended Application.
Para. 105
The respondent’s submissions
23The respondent submits that this allegation was not previously identified or raised in any of the RFOPs that the applicant filed. It requests that the paragraph be struck.
The applicant’s submissions
24The applicant notes that this allegation was raised in both the third and fourth RFOPs that he filed (dated October 15, 2012 and November 2, 2012 respectively). The applicant submits that the same wording was used in both of these RFOPs.
Analysis
25While the third and fourth RFOPs did address communications the applicant had with the general manager, they did not contain the allegation at para. 105. In fact, the allegation at para. 105 could not have been made in the third RFOP as it post-dates the date the third RFOP was filed.
26As this is a new allegation, consistent with the principles set out above in para. 3, it is struck from the amended Application.
Paras. 106-110
The respondent’s submissions
27The respondent submits that these paragraphs should be struck as they were not previously raised in any RFOP, or previously identified in any substantive way.
The applicant’s submissions
28The applicant submits that the allegations in paras. 106-110 were specifically and very deliberately raised during the call. The respondent has had advance notice of these allegations.
Analysis
29I agree with the applicant that these allegations were identified during the call, and upon review, they contain sufficient particulars. Accordingly, the applicant can continue to rely upon these allegations.
Paras. 111-114
The respondent’s submissions
30The respondent submits that these paragraphs should be struck as they were not previously raised in any RFOP, or previously identified in any substantive way.
The applicant’s submissions
31The applicant submits that these allegations were specifically and very deliberately raised during the call. The respondent had advance notice of the allegations.
Analysis
32I agree with the applicant that these allegations were identified during the call, and upon review, they contain sufficient particulars. Accordingly, the applicant can continue to rely upon these allegations.
Order
33The Tribunal orders the following:
a. the applicant can continue to rely upon the allegations contained in paras. 7-12, 21, 28, 29, 30, 67, 84, 106-110, and 111-114;
b. the applicant cannot rely upon the allegations contained at paras. 85 and 105 and they are struck from the amended Application;
c. by Wednesday, February 5, 2014, at 4:30 p.m., the applicant is directed to email the respondent’s counsel, copying the Tribunal, to provide further particulars about the following:
the dates upon which the applicant is relying for paras. 22-27 and 67 of the amended Application; and,
the dates, context, and identities for the allegations contained in para. 69.
d. if the applicant does not comply with the order in c. above, those paragraphs will be struck from the amended Application;
e. the respondent’s amended Response is to be filed by Monday, February 10, 2014;
f. the applicant’s amended Reply, if any, is to be filed by Friday, February 14, 2014; and
g. the hearing shall commence, and continue, on the days currently scheduled.
Dated at Toronto, this 3rd day of February, 2014.
“Signed by”
Alison Renton
Vice-chair