Haseeb v. Imperial Oil Limited, 2016 HRTO 805

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Muhammad Haseeb

Applicant

-and-

Imperial Oil Limited

Respondent

INTERIM DECISION

Adjudicator: Yola Grant

Date: June 14, 2016

Citation: 2016 HRTO 805; delivered orally

Indexed as: Haseeb v. Imperial Oil Limited

WRITTEN SUBMISSIONS

Muhammad Haseeb, Applicant

Chantal Tie, Counsel

Imperial Oil Limited, Respondent

Richard Nixon, Counsel

Introduction

1On February 9, 2015 the applicant filed an Application alleging that the respondent discriminated against him contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The Application is scheduled to be heard on its merits on June 14 and 15, 2016.

2After filing its Response to the Application, the respondent filed a Request for Order during Proceedings (RFOP) on June 19, 2015 and again on October 7, 2015 requesting that the Tribunal convene a summary hearing to determine whether the Application ought to be dismissed on a preliminary basis as having no reasonable prospect of success. The gist of the respondent’s submission is that the Application should be dismissed on the basis that the applicant was unable to work on a full-time basis and thus had “no standing” to allege that the respondent’s withdrawal of an offer of employment constituted discrimination with respect to employment.

3By letter dated November 2, 2015, the parties were advised that a Vice-chair of the Tribunal had considered the respondent’s request and determined that it was not appropriate to hold a summary hearing in this case.

4By RFOP dated May 13, 2016 (and amended on May 19), the respondent Imperial Oil again requested that a summary hearing be held to address whether the Application should be dismissed as a preliminary matter, ostensibly based on the applicant’s disclosure of documents. The instant RFOP was filed many months after a hearing of the merits had been scheduled and well after the respondent’s earlier request based on the same argument had been denied by the Tribunal on November 2, 2015.

5The applicant responded to the RFOP on May 26, 2016 and opposed the request for a summary hearing, citing that the test “no reasonable prospect of success under the Code” was not met in this instance.

6The respondent filed further submissions styled as a “reply” on May 30, 2016.

7The Tribunal’s Practice Direction on Summary Hearing Requests states that Requests for a summary hearing that are filed after a hearing on the merits has already been scheduled, as in this instance, will rarely be granted. In addition, having reviewed the respondent’s Request and the allegations in the Application, I remain of the view that this is not an appropriate case for a summary hearing.

8Pursuant to the Tribunal’s Rules of Procedure, where the Tribunal denies a request for a summary hearing, reasons for the denial are not required to be provided and are not provided in this case. I would simply note that the respondent’s request that the Application be dismissed prior to any evidence being called in this case rests in part on factual assertions that are in dispute. Based on the facts as asserted by the applicant, I cannot conclude at this stage that the Application has no reasonable prospect of success. In my view, this Application is appropriately decided based on an evidentiary record.

9Accordingly, I denied the request for summary hearing, by way of a Registrar’s letter that was issued on June 7, 2016, similar to that issued on November 2, 2015.

10In addition to its summary hearing request, the respondent filed a further RFOP seeking bifurcation of the hearing. This was opposed. I granted this request in a Case Assessment Direction issued on June 9, 2016, indicating that reasons would be provided orally at the start of the hearing.

11Finally, by way of letter giving notice of the respondent’s intent to seek judicial review of the denial of the summary hearing request, the respondent requested an adjournment of the hearing citing costs, uncertainty and inconvenience to the respondent’s witnesses. I denied this request in a Case Assessment Direction issued on June 9, 2016, and indicated reasons would be provided orally at the start of the hearing.

12These are the reasons for granting the respondent’s request for bifurcation and denying the respondent’s adjournment request.

Adjournment DENIed

13The adjournment request appeared to be based on the assumption that the respondent’s witnesses would be called upon to testify during the first two days of hearing. However, it is clear that the hearing of this Application will begin with the applicant’s evidence and that of the expert witness that is being called by the applicant. It is unlikely that the respondent’s witnesses will be reached on the scheduled June 14 or 15, 2016 hearing dates in any event.

14The basis for the respondent’s adjournment request was that unnecessary inconvenience and costs would be incurred if the respondent’s witnesses were required to attend the June hearing dates. However, as explained above, there is no basis for a concern that the respondent’s witnesses will be needed on June 14 or 15 and thus nothing to support a claim of uncertainty, inconvenience etc., leaving aside that these factors have little bearing on the “extra-ordinary circumstances” test that would warrant an adjournment of a hearing at the Tribunal.

Bifurcation granted

15As noted above, the respondent sought to have the liability and remedy portions of the hearing bifurcated, with a hearing on remedy being convened only if the applicant succeeds in establishing that the respondent is liable under the Code. The applicant opposed the request on the basis that the applicant would incur additional costs and lost time at work if he were required to return to give evidence at a later date on remedy, in the event that liability is established. The applicant would prefer to give his evidence on liability as well as remedy when he testifies on the first two hearing dates. There are no other witnesses who may be re-called if the hearing is bifurcated to address liability and remedy separately.

16While cost and convenience to the parties are factors to be considered by the Tribunal in deciding on how the hearing unfolds, these are not determinative. Where the parties are not in agreement on bifurcation, the Tribunal’s jurisprudence is mixed. What is clear is that this is a highly discretionary exercise of judgment in managing the hearing process and to strive for efficiency.

17It is clear from the instant proceeding thus far that the facts are contentious and the framing of the legal issue is still in dispute. From the vantage point of the Tribunal, it appears that there will be considerable evidence led in this case regarding the events associated with the job interview and offer process (liability) and regarding the requested remedies, both individual (psychological impact, general damages) and systemic. In all of the circumstances, it appears prudent to streamline the hearing to first determine the issue of liability. If there is a finding of liability, the Tribunal will convene a separate hearing to hear evidence on remedy. In my view, this is the most efficient manner in which to proceed because, if there is no finding of liability, there is no utility in hearing what I anticipate to be considerable evidence to support the applicant’s claim for damages and a public interest remedy.

18In deciding to bifurcate this hearing, I adopt the reasoning in Persaud v. Toronto District School Board, 2008 HRTO 25, where over a dozen witnesses were proposed, facts concerning liability and remedy were contested and some witnesses would need to be recalled if a hearing on remedy ended up being required:

“[B]ifurcating the hearing in this case would result in expediting the hearing on liability in the following ways: by significantly reducing the scope of the complainant’s evidence, as it would be focused on the events at issue rather than on the impact of these events; by obviating the need for medical evidence at this stage of the proceeding, which is hotly contested between the parties; by avoiding the need to hear any evidence regarding the public interest remedies unless and until a finding on liability is made, which might also assist in delineating the proper scope of any such remedies; by avoiding the need to hear any evidence at all on the issue of remedies if no liability under the Code is found.

Order

19For the above reasons, the Application shall continue in the Tribunal’s process and the hearing scheduled to commence June 14 shall continue forthwith to address liability and at some later date, if liability is established, evidence will be heard concerning remedy.