Michael Gassi v. Essar Steel Algoma, 2016 HRTO 1236

Human Rights Tribunal of Ontario

Between:

Michael Gassi Applicant

-and-

Essar Steel Algoma Respondent

Interim Decision

Adjudicator: Bruce Best Date: September 21, 2016 Citation: 2016 HRTO 1236 Indexed as: Gassi v. Essar Steel Algoma

Written Submissions

Michael Gassi, Applicant Self-represented

Essar Steel Algoma, Respondent Daniel McDonald, Counsel

Introduction

1This Application was filed on March 3, 2016 alleging discrimination in employment on the basis of place of origin, citizenship, and ethnic origin, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"). In his Reply, the applicant also raised allegations of reprisal.

Reactivation of Deferred Application

2The Tribunal wrote to the parties on June 29, 2016 seeking submissions on whether the matter should be deferred on the basis that the matter was stayed pursuant to a Superior Court order issued under the authority of the Companies' Creditors Arrangement Act, R.S.C. 1985, c.C-36 ("CCAA"). The applicant supported deferral, the respondent opposed it. The Application was deferred on August 9, 2016 by Interim Decision 2016 HRTO 1049. In the Interim Decision I also noted that the Superior Court order provided that a matter could proceed with either leave of the Superior Court, or with the written consent of the respondent and the court-appointed Monitor, Ernst & Young Inc.

3The respondent has now filed a request to reactivate the Application, and has provided the written consent from both the respondent and from the Monitor.

4The applicant opposes reactivation of the Application. Though he does not provide specifics, he claims that the respondent's desire for the matter to proceed is to "seek asylum under the jurisdiction of the CCAA proceedings", so that they can "strategically and intentionally violate human rights." He further claims that if the Application is reactivated it will be dismissed under the CCAA. The applicant does not explain why or how this may happen.

5The Application was deferred because it was stayed by a Superior Court order under the CCAA. I am satisfied that both the respondent company and the Monitor have provided written consent in accordance with the Superior Court order to permit the Application to proceed.

6The applicant has not provided any legal basis for his request that the matter continue to be stayed; rather, his concerns appear to be with respect to how the CCAA proceedings may affect his claim. Such considerations, however, are not relevant to whether the Application should continue to be deferred. The Application is reactivated.

Request for Summary Hearing

7The respondent has also filed a Request for a summary hearing under Rule 19A of the Tribunal's Rules of Procedure.

8The applicant was employed by Algoma Steel in Sault Ste. Marie, from 1978 to 2007, when he left to pursue other employment opportunities. In June 2007, Algoma Steel was purchased by The Essar Group, a multinational conglomerate based in India, who continued the steel operations in Sault Ste. Marie as Essar Steel Algoma Inc. The respondent indicates that following the purchase, it made a number of changes at the senior management level, including the appointment of a number of individuals with relevant experience from other Essar divisions, several of whom were Indian citizens.

9The applicant was rehired at Essar Steel Algoma in 2010 in senior management as a superintendent, and was later promoted to general manager. The applicant alleges that he was subsequently passed over for two promotions, one in 2013 and another in 2015, because he was not from India, and that less qualified individuals were hired or promoted instead.

10He alleges that his employment was terminated in February 2016 for various reasons, including that he had raised issues with respect to the management of the company and the hiring of Indian employees. He also claims that he had been subject to slander and abusive behaviour throughout his employment with the respondent. In his Reply he alleges that he was subject to reprisal for standing up to management. The Application also raises much broader claims of systemic discrimination against "Canadian-born" employees, and also raises issues about comment or treatment of his son, who was also an employee of the respondent.

11The respondent takes the position that the allegations respecting promotion are untimely under s.34(1) as they occurred more than one year before the Application was filed on March 8, 2016. Furthermore, it notes that one of the positions was the CEO for a separate corporation over which the respondent exerts no managerial control, though both the respondent and the other corporation were "sister companies" ultimately owned by the same parent company. It further argues that the individuals appointed were in any case more qualified than the applicant, and that the appointments were made for bona fide business reasons.

12The applicant has also filed a request to add several individual respondents.

13In the circumstances, I direct that a preliminary/summary hearing be held to determine:

a. whether some or all of the allegations may be untimely;

b. whether the allegations should be dismissed on the basis that there is no reasonable prospect that some or all of the Application will succeed;

c. If not otherwise dismissed, whether the applicant's request to add the individual respondents should be granted.

14The preliminary/summary hearing will be scheduled for a half day hearing by conference call. This Interim Decision contains important directions for the parties about the issues above that will be determined at the preliminary/summary hearing.

Are Allegations Untimely (delay)?

15It appears that some of the allegations may be untimely. Section 34(1) and (2) of the Code read as follows:

(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.

16The parties may make submissions on whether the Application is outside the Tribunal's jurisdiction for this reason. If the parties wish to rely on any evidence, witnesses or case law with respect to this issue they must deliver any additional documents, witness lists or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this letter. If any party intends to call witnesses for this portion of the hearing, a summary of the witness' intended evidence must also be filed and delivered.

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

17The 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 respondent's adverse treatment of the applicant is based, at least in part, on the applicant's race, gender, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

18Where it appears that all or part of an application may have no reasonable prospect of success the Tribunal may determine it is appropriate to hold a "summary hearing" on that issue. The summary hearing gives the applicant an opportunity to more fully explain the allegations contained in the Application and to hear argument from the parties before the Tribunal makes its decision about whether all or part of the Application has no reasonable prospect of success.

19Rule 19A of the Tribunal's Rules of Procedure sets out specific guidelines for this type of hearing and it is important because the procedures for a summary hearing are slightly different than other types of preliminary hearing issues. Most importantly, the parties are not expected to submit documents or call witnesses to testify for the purpose of a summary hearing.

20Unlike 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.

21In this case, the Tribunal has decided to hold a summary hearing because:

a. It appears that the applicant may be unable to prove that there is a connection between what the respondent is alleged to have done, and the grounds cited in the Application. That is, although the applicant may believe that the conduct of the respondent is connected to the grounds, it is not clear that there is evidence available to the applicant to prove the connection. The focus of this inquiry is on the evidence the applicant has or may be able to obtain.

b. Some of the issues the applicant is raising do not appear to fall under the Code. The focus of this inquiry is on the legal basis for the applicant's claim and whether or not there is any reasonable prospect the allegations may amount to a Code violation, or are simply general allegations of unfairness;

c. The Application also raises a number of allegations which relate to the treatment of other employees, including the applicant's son. There is no indication that this Application is being brought on behalf of another person under s.34(5) of the Code;

d. The reprisal section of the Code only applies to the actions of a respondent that are intended as a reprisal for any of the following: (1) claiming or enforcing a right under the Code; (2) instituting or participating in proceedings under the Code; or, (3) refusing to infringe the right of another person under the Code [s. 8]. See for example Mirea v. Canadian National Exhibition, 2009 HRTO 32; Chan v. Tai Pan Vacations, 2009 HRTO 273, Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish the respondent reprised against him or her for one of these three things.

22As noted, the allegation is that the applicant was not promoted because he was not East Indian, that he was subject to slander and abusive behaviour, and terminated as reprisal for standing up to the company. The Application may be found to have no reasonable prospect of success if the applicant is unable to explain how the alleged actions, if proven, could amount to discrimination.

23At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges they were fired from their employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant's assumptions or belief about why they were treated this way.

24The purpose of the summary hearing is to determine if there is evidence available to support the applicant's belief that the disadvantageous treatment he/she experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant's feeling or belief that a prohibited ground of discrimination played a role in what he/she experienced. As noted above, the parties will not be submitting evidence for the purposes of the summary hearing portion of the preliminary hearing. However, the applicant should be prepared to explain to the Tribunal what the proposed evidence will be if the Application is allowed to proceed to a hearing on the merits.

25The proposed evidence may come in a variety of forms, either as direct or circumstantial evidence. Circumstantial evidence is evidence arising from the circumstances surrounding the alleged discriminatory treatment that might lead the Tribunal to infer that the alleged disadvantageous treatment was linked to a prohibited ground. However, 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. The Tribunal is mindful of the fact that in some cases an application should proceed further in the hearing process because the respondent is the party who has control over the evidence by which the applicant might prove his or her case.

26While the primary focus in the summary hearing is on the applicant's proposed evidence, the respondent's 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 the respondent has an alternative explanation of the events.

Applicant's Request to add Individual Respondents

27Rule 1.7(b) of the Tribunal's Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

28The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 ("Smyth"), at para. 12, where the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
3. Would it be fair, in all the circumstances, to add the proposed respondent?

29When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, which reads as follows:

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
2. Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

30The parties may make submissions on whether the individual respondents should be added for these reasons.

Next Steps and Directions

31The Registrar will schedule a half day preliminary/summary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half day, not all preliminary/summary hearings require a half day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

For the Summary Hearing

32The 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.sjto.gov.on.ca/hrto/.

33No 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. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above. The 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 portion of the hearing no later than 35 days after the date of this Interim Decision.

For the Preliminary Hearing on Delay and the Issue of Adding Personal Respondents

34The parties shall deliver to each other and file with the Tribunal copies of any further documents, witness lists or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this Interim Decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness' intended evidence must also be filed and delivered.

Order

35The Application is reactivated.

36I am not seized.