HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Jayashankar
Applicant
-and-
Hilton Toronto Hotel, Kiran Panikar, and UNITE HERE Local 75
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Jayashankar v. Hilton Toronto
APPEARANCES
Andrew Jayashankar, Applicant
Janina Fogels, Counsel
Hilton Toronto Hotel, Respondent
Michelle Alton and Andrew Zabrovsky, Counsel
Kiran Panikar, Respondent
Self-represented
UNITE HERE Local 75
Jorge Hurtado, Counsel
1This is an Application filed on October 22, 2012, 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 place of origin, ethnic origin, age, and reprisal. The applicant works in the respondent's kitchen and is represented, in the workplace, by UNITE HERE Local 75 ("the union"). The personal respondent is also a kitchen employee as well as a shop steward for the union. The applicant has a complex history with the corporate respondent, the personal respondent, and the union.
2The personal respondent and the respondent Hilton Toronto filed separate Responses denying the allegations against them.
3A very lengthy case management call took place on February 13, 2014 ("the call") to address the issues that the Tribunal identified in a Case Assessment Direction ("CAD") dated October 31, 2013. Each of the issues was strongly contested by the parties, particularly the applicant and the respondent Hilton Toronto.
4The issues that were discussed during the call were:
- outstanding Requests for Order During Proceedings ("RFOP") dated November 11, 2012, December 12, 2012 and March 30, 2013;
- the union's Request to Intervene;
- whether the allegations dated November 16, 2010, October 2, 2011 and March 7, 2012 (as raised in the March 20, 2013 RFOP) are timely within the meaning of section 34(1) of the Code or whether the applicant has a good faith explanation for any delay; and
- whether there is a reasonable prospect of success for the allegations pertaining to the November 8, 2011 (or March 2012) meeting with Chef Prendergast and Mr. Panikar, the allegations against Mr. Panikar and the union in the Reply, and the allegations against the union in the applicant's RFOP seeking to add the union as a respondent.
5Prior to the call, the applicant and the union filed additional materials. The personal respondent and the respondent Hilton Toronto did not, although the respondent Hilton Toronto filed substantial submissions when filing its Responses to the RFOPs. During the call, the applicant further sought to amend his Application to include the Code ground of race and to include vocational association as an additional social ground as against the union in the event it was added as a respondent. The personal respondent did not file any Responses to the RFOPs or make submissions, except where noted.
6During the call, the Tribunal raised the possibility of using a hearing date to conduct mediation-adjudication as previously the applicant did not agree to participate in mediation. Subsequent to the call, the Tribunal sent the parties a copy of its mediation-adjudication agreement.
7I carefully have reviewed the materials filed and the submissions made during the call. I have decided that many of the issues identified in para. 4, apart from those set out below, cannot be determined at a preliminary stage and in advance of the conclusion of the applicant's evidence. I confirm that during the call the applicant represented that he was not seeking to add another personal respondent, namely Valeri Ivkhano, which was the subject of his March 20, 2013 RFOP.
8I do find it appropriate to permit the applicant to amend his pleadings, as set out in his November 11, 2012 RFOP, and, as submitted during the call, to include the grounds of race and vocational association. Reasons for these determinations will be set out in the final decision.
9Furthermore, I find it appropriate to add the union as a respondent as requested in the applicant's December 12, 2012 RFOP and as set out in his Reply. Reasons for this determination will also be set out in the final decision.
10Rule 1.7(a) of the Tribunal's Rules of Procedure ("the Rules") gives me the ability to lengthen or shorten any time limit in the Rules. The union has known about the applicant's request to add it as a respondent since his December 2012 RFOP was filed. Accordingly, the union shall file a Response with the Tribunal, copying the other parties, by Friday, May 23, 2014. If he wishes to file a Reply to the union's Response, if any, the applicant is directed to do so by Tuesday, May 27, 2014 with the Tribunal and copying the other parties.
11Hearing dates are currently scheduled for May 29 and 30 and June 3, 2014. The parties are directed to file with the Tribunal, copying the other parties, any documentation upon which they intend to rely at the hearing and witness statements, to the extent that they have not yet done so, by Monday, May 26, 2014.
12The applicant should be prepared to commence his examination-in-chief on the first day of hearing after the parties' opening submissions are given. Cross-examination and re-examination will follow his examination-in-chief. The Tribunal would be prepared to use some of the first day of hearing to participate in mediation-adjudication in accordance with the mediation-adjudication agreement that it forwarded to the parties subsequent to the call. If the parties are agreeable to participate in mediation-adjudication to resolve some or all of the issues in the Application, they are directed to indicate their willingness, by email, to the Tribunal, copying the other parties by Monday, May 26, 2014. As indicated during the call, this is a voluntary process and is not imposed upon the parties by the Tribunal.
13At the conclusion of the applicant's evidence, including his cross-examination and re-examination, the Tribunal may re-visit the other preliminary issues that were addressed during the call, as well as any other new issues raised by the parties.
Dated at Toronto, this 13th day of May, 2014.
"Signed by"
Alison Renton
Vice-chair