HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamed Youssef
Applicant
-and-
Gemstar Security Services Ltd.
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Youssef v. Gemstar Security Services Ltd.
WRITTEN SUBMISSIONS
Mohamed Youssef, Applicant
Semone Coghiel, Representative
Gemstar Security Services Ltd., Respondent
Adrian Jakibchuk, Counsel
1This is an Application dated December 19, 2014, alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In brief, the applicant was employed by the respondent company commencing August 6, 2013. The applicant alleges that he has a disability and that his disability was a factor in the respondent’s decision to terminate his employment on December 19, 2014.
2The purpose of this Interim Decision is to address the respondent’s request to strike three paragraphs from the applicant’s Reply and the applicant’s request to amend his Application to include those same three paragraphs. The Interim Decision will also address the applicant’s request for production of his pay stubs for the period he was employed by the respondent.
Decision and analysis
3In a previous Interim Decision of this Tribunal, 2015 HRTO 1345, the Vice-chair noted:
I also am aware from the file that the respondent has raised an objection to certain allegations having been raised by the applicant for the first time in his Reply (While the applicant did not file a Reply in the proper form, I have treated his “Response to Gemstar’s Allegations” dated March 13, 2015 as constituting the applicant’s Reply. This is the document in which the applicant makes the allegations contested by the respondent.)
If the parties are unable to resolve this matter through mediation, then the appropriate process is for the respondent to file a Request for Order (Form 10) seeking to strike any new allegations from the Reply. If the applicant is indeed seeking to raise new allegations in this proceeding which are not set out in the Application, then the appropriate course of action is for the applicant to file a Request for Order seeking to amend the Application to include any such new allegations.
4Although the mediation took place on March 17, 2016, the respondent did not bring the request to strike the allegations until August 8, 2016, and the applicant did not bring the request to amend until August 18, 2016. I am treating these two requests in concert because they amount to the flip sides of the same request, namely that the Tribunal consider or not consider these allegations of discrimination.
5The paragraphs in question involve allegations of racial discrimination arising in the first few months of the applicant’s employment. They can be summarized as follows:
During the applicant’s training, Tony P. loudly said to him, in respect of a written report: “Listen, this is last time I will inform you that you have to write the Offsite time.” The applicant also alleges that this individual “pointed his finger to [his] face” when this was said. He brought the issue to one of the managers, who agreed that there “should be better ways to give instructions.” (Paragraph 32)
As a new employee to the respondent, he was training with Chris G., who made unacceptable comments about persons on the basis of their race, ethnic origin and religion. The applicant brought this to the attention of the scheduler, who said he was going to speak to the operations manager about him. (Paragraph 36)
On November 20, 2013, Tony P. started shouting at him in response to an inquiry from the applicant. The applicant said that he repeatedly swore at him, and shouted “You don’t now [sic] English” and “I cannot understand your F language.” He reported that to management on the same day, via email. The re line on the email said “Workplace Harassment and Discrimination.” (Paragraph 31)
6The respondent notes in its submissions that the incidents appear to relate to the period shortly after the applicant was hired (August 6, 2013) and was a new employee. None of the allegations seem to have occurred after November 20, 2013. In his submissions, the applicant does not take issue with the respondent’s position that these allegations relate to a period in excess of one year before his termination.
7The applicant’s submissions do not explain why the applicant failed to include these allegations in his Application. He identified this conduct as discriminatory in his interactions with management of the respondent in November 2013, 13 months before he filed his Application. Moreover, the applicant has not suggested that this conduct continued after the November 20, 2013 email. Accordingly, there is no “series of incidents” which might otherwise have made the allegations timely.
8The respondents filed a Request for Order (Form 10) asking the Tribunal to strike these allegations as not being proper Reply. One of the reasons for the respondent’s request is that the allegations were made outside the one-year time limit set out in the Code. Section 34 of the Code states in part:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
9Although, s. 34 (1) applies only to when a person may apply to the Tribunal and not to when he or she can seek amendments, it does set out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to any new allegations so that they might know the case against them.
10In this case, the allegations were first included in the March 2015 Reply, nearly 16 months after the incidents. The Request to amend was filed almost three years after the incidents set out in the Request. Had the applicant included these allegations in the original Application, they may well have been dismissed for delay because they were out of time even in December 2014. The applicant has failed to provide a good faith explanation for the delay.
11For these reasons, I am not prepared to grant the applicant’s Request to amend his Application to include these earlier allegations. Having said that, it may be that Tony P.’s or Chris G.’s animus towards the applicant may be in issue at the hearing. As with many untimely allegations, while they may not be the basis for a remedial award under s. 45.2 of the Code (should they be proven), the applicant will not necessarily be precluded from adducing this evidence as context if it is relevant to the subsequent treatment that is alleged in his Application.
Production of Payroll Records
12The applicant seeks his pay stubs for the entirety of his employment on the basis that there are “many inconsistency with his pay.” The respondent does not object to providing these, but has indicated that it is not in possession of the information and would have to request (and pay for) it from a third party.
13At this point, the applicant’s request is denied. The applicant has already filed what appear to be pay stubs for the period from June to December, 2014. There has been no explanation of the “inconsistency” or why they might be relevant to these proceedings. The applicant may make a further request, with full explanation of the relevance of these documents, if he continues to believe this information is required for this hearing.
ORDER
14For the foregoing reasons, I hereby make the following order:
a. The respondent’s request to strike paragraphs 31, 32 and 36 in the Reply is granted
b. The applicant’s request to amend his Application by adding the above three paragraphs is denied; and
c. The applicant’s request for production of copies of his pay stubs is denied at this stage.
Dated at Toronto, this 9th day of September, 2016.
“Signed by”
Naomi Overend
Vice-chair