E.K. v. 2379458 Ontario Ltd., 2017 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E. K. Applicant

-and-

2379458 Ontario Ltd., Shahriar (Shaw) Heshmat, MTY Tiki Ming Enterprises Inc. and MTY Food Group Inc. Respondents

INTERIM DECISION

Adjudicator: Josée Bouchard Date: August 4, 2017 Citation: 2017 HRTO 1010 Indexed as: E.K. v. 2379458 Ontario Ltd.

WRITTEN SUBMISSIONS

E.K., Applicant Clara Matheson, Counsel

2379458 Ontario Ltd. and Shahriar (Shaw) Heshmat, Respondents Alireza Hesami, Paralegal

1This Application alleges discrimination with respect to employment because of sex, sexual harassment and sexual solicitation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In their Response filed on October 24, 2016, the corporate respondent 2379458 Ontario Ltd. (“2379458”) and the personal respondent, Shahriar (Shaw) Heshmat, submit that the Ontario Court of Justice (“OCJ”) found the personal respondent not guilty of criminal charges. Accordingly, 2379458 and the personal respondent argue that the Tribunal should dismiss the Application against them pursuant to section 45.1 of the Code. They argue that a trial took place in early May 2016 and the personal respondent was found not guilty of the same alleged incidents as in the Application. Neither the personal respondent nor 2379458 filed the transcript of the OCJ decision and the evidence considered in that case.

3On January 20, 2017, the applicant filed a Reply. In her Reply, she provides detailed submissions, including references to case law, about why the Tribunal should not dismiss the Application against the personal respondent and 2379458 pursuant to section 45.1 of the Code.

4On February 1, 2017, the Tribunal issued a Case Assessment Direction (“CAD”) giving an opportunity to the personal respondent and 2379458 to respond, before February 17, 2017, to the applicant’s submissions about the applicability of section 45.1 of the Code. The CAD noted “Upon receipt of 2379458 Ontario Ltd. and Shahriar (Shaw) Heshmat’s submissions, or if the time for filing submissions elapses, the Tribunal will review them and may decide the section 45.1 issue based upon the submissions filed, or may issue further case management directions”. In response to a request made by the personal respondent and 2379458, the Tribunal extended its deadline for the submissions to April 18, 2017.

5Since then, the only communication received from the personal respondent and 2379458’s representative is that he cannot find his client to get instructions as his client is out of Canada.

6The time to file submissions elapsed more than three months ago and the hearing has been scheduled for November 17, 2017. The personal respondent and 2379458 were warned in the CAD that if the time for filing submissions elapsed, the Tribunal could decide the section 45.1 issue based upon the submissions filed. The Tribunal only received a note on July 7, 2017 from the personal respondent and 2379458’s representative that he cannot find his client to get instructions. I am of the view that the personal respondent and 2379458 were provided more than ample time to respond to the applicant’s submissions on section 45.1 and did not provide a reasonable explanation for not filing timely submissions. Consequently, in accordance with the CAD, the Tribunal makes the following finding on whether the Application should be dismissed under section 45.1 of the Code.

decision

7Section 45.1 of the Code states:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

8The substance of the Application is that the personal respondent sexually harassed the applicant and subjected her to sexual solicitations and advances in her employment, the applicant experienced a poisoned work environment, and 2379458 did not provide her with a workplace free from discrimination and harassment. She was ultimately forced to quit because she did not feel safe in her workplace.

9The applicant explained that the personal respondent was initially charged with two counts of sexual assault against the applicant. One charge was dropped before the trial and the OCJ considered whether an incident between July 20 and 21, 2015 constituted sexual assault under s. 271 of the Criminal Code. In an oral decision on May 19, 2016, Justice M.S. Felix acquitted the personal respondent of the charge of sexual assault.

10The applicant argues that the OCJ proceeding dealt only with one count of sexual assault. It did not deal with the numerous allegations of sexual harassment, other incidents of sexual solicitation and advances, the applicant’s poisoned work environment, her employer’s failure to provide her with a workplace free from discrimination and harassment, and the applicant’s constructive dismissal.

11The onus falls on the party seeking to rely upon section 45.1 to show that the other proceeding appropriately dealt with the substance of the Application. Accordingly, for the Application to be dismissed at this stage of the proceedings, the personal respondent and 2379458 must show that the OCJ decision appropriately dealt with the substance of the Application. Without the transcript of the OCJ decision and the evidence it considered, I find that the personal respondent and 2379458 have not satisfied the onus of establishing that the OCJ proceeding appropriately deal with the substance of the Application.

12I also note that in Claybourn v Toronto Police Services Board, 2013 HRTO 1298, upheld by the Divisional Court in De Lottinville, supra, at para. 83, the Tribunal found that the substance of a human rights application cannot be found to have been “appropriately dealt with” under section 45.1 where it would work an injustice or cause unfairness:

In our view, s. 45.1 cannot and should not be interpreted to bar a Code Application where to do so would result in an affront to basic principles of fairness. In such circumstances the substance of the Application cannot be found to have been “appropriately dealt with”.

13It would be unfair to use the results of the OCJ proceeding to preclude the Application for the following reasons:

a. The reasonable expectations of the parties would not be that an OCJ proceeding under the Criminal Code would preclude this Application, given that neither the applicant nor the corporate respondents were a party; the applicant had no standing to appeal; she lacked access to a personal remedy; and she had no “financial stake” in the OCJ proceeding;

b. The nature and scope of a criminal trial are significantly different from a human rights tribunal hearing;

c. The law is clear that a criminal acquittal can be challenged in a subsequent civil claim. The legal system contemplates different proceedings and findings because of the substantial differences in the burdens of proof and the issues to be decided. A Tribunal finding, on a balance of probabilities, that the applicant experienced sexual harassment and solicitation and that her employer failed to provide her with a workplace free from discrimination and harassment does not call into question the OCJ’s finding that the individual respondent was not guilty of the criminal charge of sexual assault.

14I conclude that the personal respondent and 2379458 have not satisfied the onus to show that section 45.1 of the Code applies to the OCJ Decision and that it has appropriately dealt with the substance of the Application.

order

15For these reasons, the respondents request to dismiss the Application under s. 45.1 is denied and the Tribunal will continue to process the Application.

16I am not seized of this matter.

Dated at Toronto, this 4th day of August, 2017.

“Signed by”

Josée Bouchard Vice-chair