Taha v. Niagara Falls Taxi Limited, 2014 HRTO 379

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shihab Taha

Applicant

-and-

Niagara Falls Taxi Limited

Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: March 17, 2014 Citation: 2014 HRTO 379 Indexed as: Taha v. Niagara Falls Taxi Limited

APPEARANCES

Shihab Taha, Applicant Self-represented

Niagara Falls Taxi Limited, Respondent Paul Heath, Counsel

Proposed Personal Respondent Simon-Pierre Paquette, Counsel

Introduction

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 race and colour. The Application named Niagara Falls Taxi Limited as an organizational respondent and also named a personal respondent. The personal respondent is an employee of the Canadian National Railway Company (“CN”).

2The organizational respondent and the personal respondent each filed a Response. The personal respondent submits that the Application against him should be dismissed because CN is a federal undertaking. In general, complaints against federal undertakings or employees of federal undertakings must be made to the Canadian Human Rights Commission and the Human Rights Tribunal of Ontario does not have jurisdiction to deal with such complaints. In this case, the applicant in fact previously made a complaint to the Canadian Human Rights Commission about the events that underlie the present Application.

The Application against the personal respondent

3In this case, the personal respondent is a Manager and Trainmaster of a station operated by CN. Under section 92 of the Constitution Act, 1867, operation of railways that extend beyond Provincial boundaries is subject to the jurisdiction of the federal government. CN is therefore a federally regulated undertaking. There is nothing to suggest that the personal respondent’s employment was such that it involved matters of provincial jurisdiction. As noted, the Canadian Human Rights Commission has already exercised its jurisdiction over a complaint that is the same or similar to the complaint in the Application to this Tribunal.

4I conclude that the Tribunal does not have jurisdiction to deal with the allegations regarding the personal respondent and the Application as against the personal respondent are dismissed on that basis.

The Application against the organizational respondent

5The Tribunal does have jurisdiction to deal with the allegations about Niagara Falls Taxi Limited. Those allegations appear to be that it failed to take appropriate action in response to the alleged discrimination that the applicant alleges he experienced in his dealings with the personal respondent and other CN employees. There is also an issue about whether the respondent’s computer system identified him as a driver who should not be assigned to the CN account or whether it was the applicant who asked not to be assigned to that account.

6The Canadian Human Rights Commission conducted an investigation of the applicant’s previous complaints. It concluded that while CN employees may have been rude to the applicant, there was no evidence of racially based discrimination or harassment.

7In addition to that complaint, the applicant also previously filed an Application with this Tribunal, alleging discrimination by the Niagara Falls Taxi Limited. That Application was heard by a Vice-chair of the Tribunal who dismissed the applicant’s allegations, finding no evidence that the respondent discriminated against the applicant on any Code-protected ground.

8In assessing the present Application, it is not clear how the applicant will be able to prove the allegations of racial discrimination that he now alleges. This is particularly so because of the findings of the Canadian Human Rights Commission which reviewed the allegations of discrimination by CN which the applicant says gave rise to the discrimination by the respondent and which found that those allegations were not supported.

9Rule 19A of the Tribunal’s Rules of Procedure authorizes the Tribunal to hold a summary hearing in cases where it appears that there may be no reasonable prospect that the Application can succeed. Details about the process are discussed in the Tribunal’s Practice Direction on Summary Hearings which states:

A summary hearing usually considers:

• whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or

• whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.

10The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to rely on if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether there is no reasonable prospect that the applicant can establish that the discrimination alleged occurred.

11In some cases, the evidence that the applicant proposes to rely on is his own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s evidence is true, the applicant has not made out a case of discrimination and the Application may be dismissed on that basis.

12In this case, there is a further issue about whether the present Application should be dismissed because the issues underlying the allegations in the Application have already been determined by the Canadian Human Rights Commission and the earlier decision of this Tribunal in the earlier Application. Section 45.1 of the Code provides:

45.1 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.

13If the substance of the Application has been appropriately dealt with, the present Application could also be seen as an attempt to re-argue or re-litigate matters that have already been decided and it could also be dismissed as an abuse of process.

14I find that it is appropriate to schedule a summary hearing in this case. The Registrar will schedule a half-day telephone conference call hearing. The applicant will go first and will explain what evidence he will be able to produce that will show that the respondent discriminated against him contrary to the Code. The parties may also address whether the Application should be dismissed under section 45.1 or as an abuse of process.

Request to Intervene

15Counsel for CN and the personal respondent filed a Request to Intervene in respect of the Application on the grounds that an underlying issue may be the alleged conduct of the personal respondent. By March 28, the personal respondent shall advise the Tribunal if he still wishes to intervene in respect of this Application in light of the findings in this Interim Decision.

Decision

16The Tribunal will schedule a half-day summary hearing.