Mahdi Tarabain v. Regional Municipality of Halton, 2014 HRTO 222

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahdi Tarabain

Applicant

-and-

Regional Municipality of Halton

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: February 18, 2014

Citation: 2014 HRTO 222

Indexed as: Tarabain v. Regional Municipality of Halton

1This is an Application filed under section 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 family status and reprisal.

2The respondent has filed a Response and the applicant has filed a Reply.

3On January 14, 2014, the Tribunal issued an Interim Decision (“the Interim Decision”) in which, at para. 32, the following was ordered:

a. The applicant’s request for production of his Outlook emails, as set out in his RFP, is denied;

b. The applicant is directed to immediately disclose to the respondent any documentation pertaining to his apparent claim for loss of wages;

c. The applicant is directed to file submissions about his allegations that pre-date March 7, 2012 being possibly untimely, with the Tribunal, copying the respondent’s counsel, within seven days of the date of this Interim Decision;

d. If the respondent wants to file submissions responding to the applicant’s submissions in c. above, it is directed to file submissions with the Tribunal, copying the applicant, within seven days of receipt of the applicant’s submissions;

e. The applicant is directed to advise the Tribunal, copying the respondent’s counsel, by email within seven days of the status of the ESA complaint and if the OLRB has issued a decision to provide a copy of that decision.

4After requesting and then receiving an extension from the Tribunal to file the submissions he was required to submit, pursuant to para. 32 of the Interim Decision, the applicant filed submissions on January 24, 2014 responding to the issues identified in the Interim Decision and providing a copy of the OLRB decision.

5The respondent filed a copy of the OLRB decision and the applicant’s request for the OLRB to reconsider its decision, and an accompanying letter, on January 14, 2014. The respondent also filed submissions, responding to the applicant’s submissions as permitted by para. 32 d. of the Interim Decision.

6The Interim Decision did not indicate that the applicant would have an opportunity to respond to the respondent’s submissions.

7The Tribunal issued a Case Assessment Direction (“CAD”) on February 14, 2014. In the CAD, the Tribunal did not issue any decisions with respect to the issues identified in the Interim Decision, although it cancelled the in-person hearing dates scheduled for March 17, 18 and 19, 2014, and stated that it would schedule a half-day telephone conference call hearing for the afternoon of March 17, 2014. The Tribunal stated, at para. 16, that during the teleconference call, the Tribunal will hear the parties’ submissions on the following:

1. Are the allegations in the Application that pre-date March 7, 2012 untimely within the meaning of section 34(1) of the Code and if so is there a good faith explanation for their delay within the meaning of section 34(2) of the Code?

2. Do the allegations in the Application that pre-date March 7, 2012 fall within a “series of incidents” within the meaning of section 34(1)(b) of the Code and as such are timely?

3. With the OLRB hearing being issued, does section 45.1of the Code operate to dismiss the Application in whole or in part?

4. If the allegations that pre-date March 7, 2012 are found to be untimely, and/or part of the Application is dismissed pursuant to section 45.1 of the Code in light of the OLRB decision, do the remaining allegations in the Application have a reasonable prospect of success? The applicant should be prepared, on this issue, to point to the evidence on which he will establish a link to the grounds alleged, intention to commit a reprisal, and a link to the respondent’s alleged actions.

8At para. 17 of the CAD, the Tribunal provided that if either party wished to file additional materials with the Tribunal, including written submissions and/or case law, they were directed to do so by Monday, March 10, 2014. Further, at para. 15, the Tribunal stated that during the conference call hearing on March 17, 2014, the applicant will provide his submissions first, the respondent will have an opportunity to respond to the applicant’s submissions, and the applicant will have an opportunity to respond to the respondent’s submissions.

9After the issuance of the CAD, the applicant sent six emails to the Tribunal on February 14, 2014. The times of those emails are 1:16 p.m., 1:19 p.m., 3:24 p.m., 4:02 p.m., 4:38 p.m., and 4:48 p.m. The respondent sent an email on February 14, 2014 at 2:37 p.m. (“the respondent’s email).

10In the first three of the applicant’s emails, he requests that the Tribunal withdraw the CAD. In the first email, he submits that the withdrawal should occur until a Reply is filed. He submits that he was not given 14 days from the date the respondent filed its submissions after the Interim Decision was issued to respond to the respondent’s submissions. He submits that this is contrary to Rule 9 of the Tribunal’s Rules of Procedure (“Rules”). In the second email, the applicant requests that the Tribunal withdraw the CAD immediately.

11In the respondent’s email, it submits that Rule 9 of the Tribunal’s Rules does not apply to this situation as it pertains to the original pleadings that were filed, and that the pleadings are now closed. It also notes that the conference call hearing scheduled for March 17, 2014, gives the applicant an opportunity to respond to the respondent’s submissions.

12In the third to sixth emails, and in response to the respondent’s email, the applicant asserts that the respondent’s position is without foundation and submits “the statement is seen as being offensive in nature as it attempts to prolong the Recovery of the Applicant after their chosen actions has conferred a disadvantage experienced by the applicant (e.g. discriminated against him in terminating his employment, reprising against him, and many other series of incidents representing infractions of the Code). The applicant concludes his emails stating that he reserves his legal rights, including, in the third email, “per the Tribunal’s Rules of Procedure, and all applicable laws and statutes”. The fourth, and fifth emails all contain changes to the wording the applicant uses in his third email. The sixth email contains the same language as the fifth email.

Analysis

13The respondent is correct that Rule 9 of the Tribunal’s Rules pertains to the original pleadings and that the pleadings in this file are now closed. Rule 9 gives an applicant 14 days after a respondent’s Response was sent to him or her to file a Reply where the applicant intends to prove a version of the facts different from those set out in the Response. The applicant has filed a Reply. Rule 9 does not apply with respect to the submissions the Tribunal directed the applicant file in the Interim Decision.

14The applicant has an opportunity to respond to the submissions that the respondent filed after the Interim Decision was issued, and submissions that the respondent may file by March 10, 2014, at the conference call hearing that will be scheduled for the afternoon of March 17, 2014. Furthermore, as noted in para. 8 above, and in para. 15 of the Interim Decision, the applicant will have an opportunity during the March 17, 2014 conference call hearing to respond to the respondent’s submissions after the respondent makes them.

15Accordingly, the Tribunal will not withdraw the February 14, 2014 CAD.