Khan v. LK Protection Services, 2015 HRTO 1704

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nawab Khan Applicant

-and-

LK Protection Services and Marty York Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: December 17, 2015 Citation: 2015 HRTO 1704 Indexed as: Khan v. LK Protection Services

WRITTEN SUBMISSIONS

Nawab Khan, Applicant Self-represented

LK Protection Services, Respondent Leonard Labelle, Representative

Marty York, Respondent Self-represented

1This Application filed on August 25, 2015, alleges discrimination with respect to employment on the basis of race, place of origin, age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The corporate respondent filed a Response on October 14, 2015 and the personal respondent filed a Response on October 30, 2015. The corporate respondent has made a request that the Application be dismissed on the basis that the applicant has filed a civil claim based on the same facts.

3The applicant filed a Form 11 in response to the Request to dismiss in which he submits that no civil claim has been filed but states that a claim to the Ministry of Labour alleging contraventions of the Employment Standards Act has been filed. The applicant does not provide information on the status of this claim.

4On November 23, 2015, the Tribunal issued a Case Assessment Direction in which the applicant was directed to update the Tribunal on the status of the claim at the Ministry of Labour and to provide a copy of the decision on this claim if it had been issued.

5A review of the materials filed by the parties indicate that the claim to the Ministry of Labour is based on allegations of breaches of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, as amended, and breaches of the Employment Standards Act, 2000, S.O. 2000, c.41, as amended, with respect to severance pay and limits on hours worked.

6The applicant has not made any allegations of breaches of the Code in his claims to the Ministry of Labour. I therefore find that this Application should not be deferred or dismissed on the basis that the substance of the Application has been appropriately dealt with in another proceeding.

7However, upon further review of the Application and Responses, the Tribunal has determined that it will hold a summary hearing to determine whether all or part of this Application should be dismissed on the basis that there is no reasonable prospect that the Application, or part of the Application, will succeed.

8This Interim Decision contains important directions for the parties about the issues that will be determined at the summary hearing.

is there no reasonable prospect that the Application or part of the Application will succeed?

9The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is connected to his race, place of original, age or is reprisal under the Code.

10The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to explain to the Tribunal what evidence he has to demonstrate to the Tribunal how the alleged adverse treatment was connected to his race, place of original, age or is reprisal under the Code.

11Unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way. If the applicant is unable to point to evidence, beyond their own assumptions or belief, an application may be found to have no reasonable prospect of success and be dismissed.

12Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. In some cases, the Tribunal may find that only part of the application will move ahead, while part of it is dismissed.

13While the primary focus in the summary hearing is on the applicant’s proposed evidence, the respondents’ allegations may also be considered where the facts are not in dispute or where it is plainly obvious that a fact must be true. However, the Tribunal is careful to ensure that an application is not dismissed at the summary hearing stage simply because a respondent has an alternative explanation of the events.

14The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at www.hrto.ca.

15No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable chance of success.

ORDER

16The corporate respondent’s request to dismiss the Application is denied.

17The Registrar will schedule a half-day summary hearing by conference call.

18The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon for this summary hearing no later 14 days prior to the date of the teleconference hearing.

19I am not seized.