Lomotey v. Kitchener Waterloo Multicultural Centre, 2016 HRTO 428

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathan Lomotey

Applicant

-and-

Kitchener Waterloo Multicultural Centre, Carizon Family and Community Services and Family and Children’s Services of the Waterloo Region

Respondents

INTERIM DECISION

Adjudicator: Sheri Price

Date: April 5, 2016

Citation: 2016 HRTO 428

Indexed as: Lomotey v. Kitchener Waterloo Multicultural Centre

APPEARANCES

Jonathan Lomotey, Applicant Self-represented

Kitchener Waterloo Multicultural Centre, Respondent Barry Fick, Counsel

Carizon Family and Community Services, Respondent Dawn Phillips-Brown, Counsel

Family and Children’s Services of the Waterloo Region, Respondent Carole Jenkins, Counsel

Introduction

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against the applicant because of his race, colour, ancestry, place of origin, and ethnic origin with respect to employment. The applicant self-identifies as black and of African origin.

2A summary hearing was held in this matter on January 6, 2016. Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing is to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an Application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal.

3The applicant, Jonathan Lomotey, was the Executive Director of Novell Community Development Solutions (“Novell”), a not-for-profit organization.

4The applicant alleges that Novell designed a pilot project related to trauma initiatives in the Waterloo region and invited the respondent organizations to collaborate on the project. The respondents agreed and the four organizations, Novell, Carizon Family and Community Services, Kitchener Waterloo Multicultural Centre (“KWMC”), and Family and Children’s Services of the Waterloo Region entered into a collaborative agreement to undertake the project together. An application for funding was made to the Ontario Trillium Foundation, which was approved.

5Under the terms of the grant, KWMC was to be the project lead for financial management. The applicant alleges that Novell retained the role of co-lead agency responsible for project implementation and that the applicant himself was to be the project manager.

6Not long after the project got underway, problems arose between the applicant and one or more of the respondents.

7For his part, the applicant alleges that, early on, the respondents, particularly KWMC, improperly attempted to isolate him and to diminish his role in the project. The applicant alleges that, ultimately, the respondents excluded him from the project altogether on the stated basis that the structure of the project was “too complex”. The applicant alleges that this was a pretext and that the respondents’ actions were linked in whole or in part to the fact that he is a black man of African origin.

8The respondents allege that they had numerous concerns about the applicant’s behaviour that ultimately led to them deciding to withdraw from the collaborative agreement with Novell (and therefore the applicant) in September 2014. The respondents subsequently entered into a new collaborative agreement and undertook the trauma initiative project without the applicant’s or Novell’s involvement.

9In terms of the respondents’ alleged concerns about the applicant, among other things, the respondents allege that the applicant had behaved inappropriately by sending a September 2, 2014 email in which he stated, “Whew! Feels like I have just survived a mauling by a tag team of [the project coordinator] and [the executive director of KWMC],” followed by a smiley face emoticon. The applicant’s email was apparently sent in relation to the project coordinator and KWMC’s Executive Director pointing out what they allege were errors in the minutes of a meeting that had been circulated by the applicant.

10The respondents also allege that they were concerned about the fact that the project coordinator resigned from the project on September 2, 2014, claiming that the applicant’s September 2, 2014 email showed an “escalation” of the applicant’s inappropriate behaviour towards her and that the applicant had subjected her to a “vicious verbal attack” at a meeting during the previous week.

11At least one of the respondents pleads that a “safety plan” was put in place for a September 9, 2014 meeting between the applicant and the respondents, because of alleged concerns about how the applicant might react to a discussion about his allegedly inappropriate September 2, 2014 email and the project coordinator’s resignation from the project, among other topics.

12The applicant disputes many if not all of the respondents’ factual allegations against him. With respect to the resignation of the project coordinator, in particular, the applicant submits that the claim that he treated her in an aggressive or inappropriate manner is false. In addition, the applicant contends that the respondents accepted the project manager’s allegations against him without permitting the applicant to respond to them. The applicant pleads that the respondents attempted to portray him as a vicious and even violent person based on a stereotype. The applicant contends that he actually has a very calm demeanour and that there was no foundation for the respondents’ alleged concerns about him.

13At this stage, it is obviously not appropriate to make any factual or legal findings with respect to the applicant’s allegations. Suffice it to say that, having carefully considered the matter, I am not persuaded that the applicant has no reasonable prospect of success in proving that any or all of the respondents infringed his rights under the Code.

14The respondents maintain that their decision to withdraw from the collaborative agreement with Novell and/or the applicant was related to the unworkability of the arrangement and the applicant’s behaviour, and unrelated to any prohibited ground of discrimination under the Code. However, these factual allegations are very much in dispute. In the circumstances, it would not be appropriate to dismiss the Application at this stage. The Application will continue in the Tribunal’s process.

15In coming to this determination, I note that the Tribunal has repeatedly stated that it “is very 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. The Tribunal is mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.” (See, for example, Reis v. Mississauga (City), 2013 HRTO 954, at para. 11.)

16Pursuant to Rule 19A.6, it is not necessary or appropriate to provide further reasons for my decision not to dismiss the Application following the summary hearing. The presiding adjudicator will be in the best position to determine the scope of the hearing and to evaluate any evidence.

order

17The Application will continue in the Tribunal’s process.

18I am not seized of this Application.