Cherukuri v. Diversified Transportation Ltd. o/a Milton Transit, 2016 HRTO 1346

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aswani Cherukuri Applicant

-and-

Diversified Transportation Ltd. o/a Milton Transit Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: October 17, 2016 Citation: 2016 HRTO 1346 Indexed as: Cherukuri v. Diversified Transportation Ltd. o/a Milton Transit

WRITTEN SUBMISSIONS

Aswani Cherukuri, Applicant Shannon Sproule, Counsel

Diversified Transportation Ltd. o/a Milton Transit, Respondent Richard Nixon, Counsel

Introduction

1This Application, filed on August 31, 2015, alleges reprisal in employment. The applicant was not represented by counsel at the time that he filed the Application.

2In the Application, the applicant makes a number of complaints relating to his training with the respondent, many of which are not related to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Among these complaints is the applicant’s assertion that during his training, he was criticized for his accent when speaking English. The applicant states that his morale was affected when the trainer told him that he had an accent when speaking English and that his self-esteem was under constant pressure throughout the training. The applicant was not successful in his training with the respondent. It appears that the applicant believes that one reason for his lack of success was that his accent when speaking English was not acceptable (see Question A41 on Form 1-A).

3On June 22, 2016, the respondent brought a Request for Order During Proceedings to dismiss the Application because it does not identify any ground of discrimination upon which the applicant alleges the Code was violated and does not identify how the respondent subjected the applicant to reprisal or threat of reprisal.

4On July 28, 2016, the applicant brought a Request for Order During Proceedings to amend the Application to add the grounds of race, place of origin, ethnic origin and ancestry. The applicant also sought to add particulars to the Application relating to the criticism made about the applicant’s accent by an employee of the respondent, and to add that the applicant was born in India, immigrated to Canada in 2003, and is a visible minority.

5The respondent opposes the applicant’s amendment request for the following reasons:

a. It is an attempt to make new claims of discrimination;

b. The new claims of discrimination are untimely;

c. The applicant has not provided a good faith explanation for his delay;

d. The amendment request is for an improper purpose, namely, to defeat the respondent’s dismissal request;

e. The amendment request is prejudicial to the respondent. The employee who is alleged to have criticized the applicant’s accent recently passed away; and

f. The request does not constitute a circumstance in which the Tribunal should exercise its discretion and permit the amendment.

6The Application is scheduled for a hearing on November 9 and 10, 2016.

Analysis

7I will address the parties’ interim requests in the order in which they were filed.

Dismissal Request

8The Tribunal may dismiss an application without providing an opportunity for an oral hearing if the Tribunal does not have jurisdiction to deal with the application. However, an application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381.

9In this case, the applicant alleges that during his training with the respondent, he was criticized for his accent when speaking English. He asserts that this criticism impacted his training. It appears that the applicant believes that his accent was one of the reasons for his lack of success in the training, which the applicant characterizes as reprisal. At this stage in the proceedings, I cannot find at this stage in the proceedings that it is plain and obvious that the Tribunal does not have jurisdiction over this complaint. As such, the respondent’s request to dismiss the Application is denied.

Amendment Request

10In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondents.

11Although the applicant did not check off the boxes of race, place of origin, ethnic origin and ancestry in the Application, they flow from the substance of the Application as language-based discrimination may give rise to these related grounds of discrimination. Adding these grounds of discrimination does not change the nature of the allegations of discrimination set out in the Application. As such, the applicant’s request to add the grounds of race, place of origin, ethnic origin and ancestry is granted. The applicant’s request to particularize his place of origin and when he immigrated to Canada is also granted.

12The applicant’s request to particularize the comment made by the employee about the applicant’s accent is denied because the employee has passed away and cannot respond. It would be prejudicial to the respondent to add this particular at this time. It appears that the applicant’s complaint to the respondent about the comment is already contained in the Application.

Order

13The respondent’s request to dismiss the Application is denied at this time. This decision does not prevent the respondent from bringing a further dismissal request at the hearing, if appropriate.

14The applicant’s request to amend the Application is granted, in part. The applicant may refer to the additional grounds of discrimination and the fact that he was born in India, immigrated to Canada in 2003, and is a visible minority.

Directions

15The parties are directed to file their hearing documents by October 31, 2016.