Garcia v. 2404841 Ontario Inc., 2015 HRTO 381

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fernando Garcia

Applicant

-and-

2404841 Ontario Inc. o/a Pearl Lounge Bar and Grill

and Zahir Ahmad Fathazada

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: March 25, 2015

Citation: 2015 HRTO 381

Indexed as: Garcia v. 240481 Ontario Inc.

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 sex. The hearing of this case is scheduled to begin on May 2015.

2This Case Assessment Direction deals with a number of issues raised by the parties and is intended to assist the parties in preparing for the hearing.

3In his Application the applicant alleges that he applied to an advertisement for a bartender with the respondent. He alleges that he received no response to his application. He alleges that he contacted the corporate respondent and spoke with the personal respondent who it is alleged stated that they only filed female persons for bartender positions.

4The respondents filed a Response. The respondents assert that they invited the applicant for an interview but he did not attend. The respondents do not dispute that the advertisement sought a female bartender.

5The applicant did not file a Reply to the Response. It is not clear at this stage whether the applicant disputes the respondents’ assertion that he was invited in for an interview.

6The applicant appears to have completed his productions. The respondent has not yet filed its documents and witness lists etc. and should do so forthwith.

REQUEST TO INTERVENE

7The Canadian Association for Equality (CAFE) filed a Request to Intervene.

8The Request is denied.

9Requests to Intervene in matters before this Tribunal are governed by Rule 11. With respect to organizations that are not the Ontario Human Rights Commission, the following portions of Rule 11 apply:

11.1 The Tribunal may allow a person or organization to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

Intervention by a Person or Organization other than the Commission

11.2 A request to intervene by a person or organization, other than a request by the Commission, must be made in Form 5, Request to Intervene, and must be delivered to all parties and any affected persons or organizations identified in the Application or the Response and filed with the Tribunal.

11.3 A Request to Intervene must include an answer to each question in Form 5 and must:

a) describe the issue(s) that the person or organization wants to address;

b) explain the proposed intervenor’s interest in the issue(s) and its expertise, if any, regarding the issue(s);

c) set out the proposed intervenor’s position, if any, on each of the issues raised in the Application and the Response; and

d) set out all the material facts upon which the proposed intervenor will rely.

11.4 Where a party wishes to respond to a Request to Intervene, the response must be in Form 11, Response to Request, and must be filed with the Tribunal no later than 21 days after the Request to Intervene was delivered.

11.5 A copy of the Response to Request under Rule 11.4, if any, must be delivered to the proposed intervenor, all other parties and any identified affected persons or organizations and filed with the Tribunal.

10The Tribunal has the discretion to grant intervention status to an organization that complies with the above Rules. In considering this issue I found helpful the following criteria set out by the Board of Inquiry (the predecessor to the Tribunal) at para. 19 of Jeppersen v. Ancaster (Town), [2001] O.H.R.B.I.D. No. 1 (“Jeppersen”):

In my view, the following considerations, while not exhaustive, inform the decision whether intervention should be granted and, if so, on what terms:

(a) whether the intervention will unduly delay or prejudice the determination of rights of the parties to the proceeding;

(b) whether the applicant has a significant interest in the issue on which intervention is sought;

(c) whether the applicant is likely to provide assistance to the Board that will not otherwise be provided.

11The proposed intervenor framed its request in relation to alleged systemic discrimination against men in the hospitality sector and suggested that it could offer its expertise in relation to allegedly systemic discrimination against men in this sector. It also makes a number of arguments about the facts that are more appropriately made by the applicant.

12I find that it is not necessary to the fair, just and expeditious adjudication of this Application that the Request to intervene be granted. This case raises no evident issues of systemic discrimination. The allegation is that the respondent was seeking a woman to fill a bartender position. There is an insubstantial reference to a business need for a woman which may be the bone fide occupational requirement to which the applicant refers – this is not clear. However in my view the addition of the proposed intervener at this stage would add nothing but cost and delay to this case without in any material manner making it more fair or just. Moreover assuming without deciding that the proposed intervenor has a significant interest in this case it is not at all clear that its intervention will be of any assistance to the Tribunal.

REQUEST FOR ORDER

13The respondents filed a Request for Order seeking the production of the applicant’s “bank and financial records for the past five years. The respondent argues that the applicant has not plead any material facts which would support pecuniary losses of $52,000.

14The applicant opposes the request claiming that the applicant’s financial records are not relevant.

15There will be no Order at this time. However the applicant’s position on this issue is incorrect to this extent. To begin with the applicant must prove his losses – his financial and banking records are likely relevant to that extent. Secondly he must lead evidence that he attempted to mitigate his losses. Similarly any income that the applicant earned, pre and post these alleged incidents, is material to the calculation of his pecuniary losses if any.

16At this stage I leave it to the applicant to determine how he will prove his damages.