Ahmed v. Magellan Aerospace Corporation, 2015 HRTO 916

Human Rights Tribunal of Ontario

B E T W E E N:

Aftab Ahmed Applicant

-and-

Magellan Aerospace Corporation Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: July 13, 2015 Citation: 2015 HRTO 916 Indexed as: Ahmed v. Magellan Aerospace Corporation

WRITTEN SUBMISSIONS

Aftab Ahmed, Applicant Rebeka Lauks, Counsel

Magellan Aerospace Corporation, Respondent Martin Addario, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, citizenship, place of origin or ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondent filed a Response.

2On June 10, 2015, the applicant filed a Request for an Order During Proceedings ("RFOP") requesting the following:

a. An order that the respondent provide a further and better Response that responds to the applicant's allegations, as required by Rule 8.2 of the Tribunal's Rules of Procedure;

b. An extension of time to file his Reply;

c. An order that Tab 6 of the Response is inadmissible.

3The respondent filed a Form 11 Response to a Request for an Order objecting to the applicant's requests.

Parties' Positions

Particulars

4The applicant alleges in his Application that he has been:

a. subject to adverse, discriminatory treatment along with other members of visible minority groups;

b. harassed and intimidated, subject to discriminatory comments and treated in an unprofessional way by numerous employees of the respondent;

c. denied credit or had his contributions to the company devalued;

d. paid significantly lower than his non-racialized counterparts;

e. prevented from taking the lead on projects and prevented from direct contact with clients which are tasks non-racialized employees have been allowed to perform;

f. assigned less desirable tasks;

g. subject to different policies, managing styles and employment structures than non-racialized employees, such as having his supervisor maintain his time card for him whereas non-racialized employees maintain their own;

h. subject, along with other racialized employees, to additional reporting relationships and therefore multiple evaluators resulting in obstruction of their work and lengthy delays that are then blamed on the employees;

i. unable to advance in his career;

j. subject to having limited electronic access to technical documentation until 2013 because the respondent alleged that because he originally was from Bangladesh, he was not permitted to access this information because of the United States' International Traffic in Arms Regulations (ITAR) and Canada's Controlled Goods Act, despite the fact that the U.S. waived the ban for Canadian citizens originating from countries listed under ITAR 126.1 and despite the fact that Bangladesh is not a country on the list in any event;

k. subject to barriers to advancement through the denial of mentoring and other developmental opportunities available to non-racialized employees;

l. subject to questions about his background, skills and qualifications

m. subject to the respondent using a different designation for him and other racialized engineers; and

n. subject to negative effects on his performance evaluations because of the discriminatory treatment.

5In his RFOP, he submits the respondent inappropriately provides a blanket denial of his allegations, and fails to respond to each allegation made in the Application and to include any additional facts and allegations upon which it relies.

6The applicant further states that a blanket denial of the applicant's allegations is inconsistent, given that the report of its independent investigator verbally acknowledged some allegations were substantiated, but otherwise the investigator's findings are unknown to him. While the respondent apparently agreed to accept responsibility for some of the verbally described findings, the applicant does not know which of his allegations is admitted or denied. In addition, the respondent does not claim that any exemption in Box 10 of the Form 11 Response applies to it such that it does not have to provide a response.

7The applicant further submits he participated in the internal investigation but did not agree to the settlement proposal that resulted, and the respondent should not be relieved of its duty to respond.

8In addition, the applicant submits he made some allegations of systemic discrimination, which the respondent has not mentioned in its Response.

9The applicant also set out details of his 2014 complaint; the fact that he was told over the ensuing 11 months only that the investigation was ongoing; and that he was called into a meeting in January, 2015 and told that the investigator's findings largely corroborated his allegations. The applicant alleges he was told changes would be made, including a restructuring of the department to include only one level of management and that engineering designations would be removed. He alleges the respondent acknowledged a difference in his salary from others with similar qualifications and experience and he was offered a resolution with respect to his salary.

10The applicant also alleges he was offered apologies, but no substantive steps were taken to address the discriminatory treatment other than to issue him a new business card and to revise his salary, which remains insufficient. He alleges he has not had the opportunity to review the investigator's findings.

11The respondent submits that the issue is whether or not the applicant is able to comply with his obligation to file a Reply, and states that the object of the Tribunal's Rules respecting filing of complete Applications, Response and Replies is to afford all parties an opportunity to state their case, and respond to the other parties' cases to promote a fair, just and expeditious hearing process.

12The respondent submits that the Tribunal, in determining requests for particulars, has considered whether the respondent has plead all the material facts upon which it intends to rely, and provided information on the respondent's position with respect to each of the applicant's allegations.

13The respondent states its Response details its commitment to a discrimination-free workplace, contrary to the allegations of systemic discrimination; its investigation process; and the outcome of the investigation. It also denies the applicant's allegations unless specifically admitted.

14The respondent states the applicant's request appears to be a "fishing expedition" with respect to the investigation and alleged racial discrimination complaints by other current or former employees.

15The respondent submits that presumably the applicant has set out the material facts upon which he relies and the applicant only needs to reply to new matters in the Response, or provide any additional facts required to prove a different version of the events set out in the Response. It submits the applicant provides no reason why it cannot provide a meaningful reply to any new matter raised.

16The Response states that after the applicant filed his complaint, the respondent hired an investigator who made various recommendations. The respondent met with the applicant to advise him of the outcome of the investigation in January, 2015, and took steps immediately to implement the recommendations.

17The respondent states it is committed to fostering a safe and healthy work environment free of discrimination and harassment and that is governed by its Workplace Violence, Harassment and Discrimination Policy ("the policy"). It states its employees received training on workplace sensitivity in 2000; human rights in the workplace in 2004; workplace harassment in 2007; and workplace violence and harassment in 2011. In April, 2015, the respondent trained its employees on the Code and policy.

18The Response sets out the names of four individuals the applicant identified in his complaint. It further details that an investigation was undertaken, and the fact that the investigator and the respondent met with the applicant to identify what he felt would remedy the discrimination and harassment he identified. It further states the investigator reported her preliminary assessment in December, 2014, and meetings with the investigator and the respondent were held with the identified employees and the applicant in January, 2015.

19The Response then lists the undertakings it made to the applicant to rectify concerns identified by the investigation, as well as the progress on implementation, and a subsequent meeting with the applicant in February, 2015 to report on progress. It noted the applicant expressed no dissatisfaction with the progress.

20The respondent denies systemic discrimination.

Law and Analysis

21Rule 8.2 states:

A complete Response must provide the information requested in each section of the Form 2, respond to each allegation set out in the Application and must also include any additional facts and allegations on which the Respondent relies. Where a Respondent alleges the issues in dispute in the Application are the subject of:

a) a full and final signed release between the parties; or

b) a civil court proceeding requesting a remedy based on the alleged human rights infringement; or

c) a complaint filed with the Ontario Human Rights Commission; or

d) exclusive federal jurisdiction,

the Respondent need not respond to the allegations in the Application, but must attach a copy of the applicable release, or statement of claim or court decision, or complaint filed with the Ontario Human Rights Commission or its decision and must include with the Response complete argument in support of its position that the Application should be dismissed. Notwithstanding anything else in Rule 8.2, the Tribunal may direct a Respondent to file a complete Response where the Tribunal considers it appropriate.

22As a matter of course, parties are expected to complete the exchange of pleadings prior to raising preliminary issues. See, e.g.: Bruno v. North York Chrysler Jeep Dodge Ram Fiat (“NYC”), 2015 HRTO 855. In this case, although the Response lacks detail, it contains sufficient information about the respondent's position for the applicant to file a Reply and in my view need not be dealt with in advance of the completion of the pleadings.

23One of the applicant's main complaints appears to be that he does not have a copy of the investigator's report. If the matter proceeds to a hearing, the parties will have to disclose to each other all arguably relevant documents of which any investigative report would be one. If at that point the applicant requires further particulars, he may renew his request. See, e.g.: Rollick v. 1526597 Ontario Inc., 2015 HRTO 182.

Inadmissibility of Document

24The respondent attached to its Response a document entitled "What I Want", apparently obtained from the applicant during the course of the investigation.

25The applicant requests that this document be found to be inadmissible because the applicant offered this on a without prejudice basis when questioned about how he would be prepared to settle his complaint, thereby making it subject to privilege.

26The respondent counters that the applicant provided the document voluntarily to the investigator in the context of discussing the desired outcomes of the investigation, and to provide particulars of the applicant's initial request in his February 24, 2014 complaint.

27The respondent alleges it was treated the same by the applicant and the investigator as any other document produced during the investigation, and at no time did the applicant claim it was a without prejudice offer to settle a potential claim against the respondent, nor did the respondent rely on it as such. It was not exchanged in the course of litigation or in the contemplation of it.

28I see no reason to exclude the document at this preliminary stage. If the matter proceeds to a hearing, the parties will exchange arguably relevant documents and then documents to be relied on at the hearing. If the applicant continues to object to the admissibility of this document, he can renew his request for an order excluding it.

Order

29The applicant's requests for particulars from the respondent and for the exclusion of the document attached at Tab 6 of the Response are denied, without prejudice to the applicant's right to renew these requests at a later stage of the proceeding.