Ahmed v. Magellan Aerospace Corporation, 2017 HRTO 1235

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aftab Ahmed

Applicant

-and-

Magellan Aerospace Corporation

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 20, 2017

Citation: 2017 HRTO 1235

Indexed as: Ahmed v. Magellan Aerospace Corporation

WRITTEN SUBMISSIONS

Aftab Ahmed, Applicant

David Baker, Counsel

Magellan Aerospace Corporation, Respondent

Kathleen Tate, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of race, colour, place of origin, place of origin, citizenship, ethnic origin and reprisal.

Background

2The applicant identifies himself as a member of a visible minority group and as a dual citizen of Bangladesh and Canada. The applicant states that he was born in Bangladesh and emigrated to Canada in 1988. The applicant is a mechanical engineer and began employment with the respondent in or about 1988 or 1989. The applicant alleges that throughout his employment with the respondent he has been subject to he has been subject to discriminatory treatment, in a variety of ways, contrary to the Code. In February 2014, he complained to the respondent about the discrimination he experienced. The respondent retained a third party investigator to investigate the complaint. The applicant states that the investigation largely upheld his allegations, Nonetheless he asserts that the investigation was flawed and the respondent’s response to the investigation was inadequate. The applicant states that he has been subject to reprisals since he filed his complaint. The respondent denies that it discriminated against its employees. The respondent states that it took action to address the applicant’s complaint and to implement the recommendations of the investigator.

The Applicant’s Request

3On May 13, 2017, the applicant filed a Request for an Order During Proceeding seeking an order to narrow the issues to be decided in this matter based on admissions the applicant submits the respondent has made (“the Request”). On June 5, 2017, the respondent filed a Response to a Request for Order, after receiving an extension to the filing deadline. The respondent opposes the Request, as it asserts that it has not made the admissions attributed to it, the Tribunal lacks jurisdiction to dispose of the Application in the manner the applicant requests, and that to proceed in the manner requested would amount to a denial of natural justice to the respondent.

4On June 12, 2017, the applicant purported to file Reply submissions. The Tribunal's Rules of Procedure (“the Rules”) do not provide for Reply submissions regarding requests made under Rule 19 and, contrary to the applicant’s submission, it is not the Tribunal’s custom to permit them. See, for example, Welykyi v. Rouge Valley Co-operative Homes Inc., 2014 HRTO 1813. Consequently, the Tribunal will generally not consider reply submissions unless the Tribunal requests such submissions or grants leave to file them. Having said that, I have reviewed the applicant’s Reply submissions, but they did not alter my disposition of the Request.

The Applicant’s Submissions

5The applicant submitted that the respondent has made several significant admissions, which are set out in an affidavit sworn by the applicant. The applicant submitted that there is no need for the Tribunal’s involvement to resolve these factual issues.

6The applicant submitted that the Tribunal’s Rules, specifically Rules 1.6 and 1.7, allow the Tribunal to use procedures other than traditional adjudicative or adversarial procedures, to narrow issues and to limit evidence and submissions. The applicant submitted that the purpose of Rule 19A, which establishes the summary hearing procedure, should apply to determine whether a respondent has presented a defence to prima facie allegations of discrimination. The applicant submitted that the summary hearing process prevents unnecessary litigation where an application has no reasonable prospect of success. The applicant submitted that this purpose should apply equally to circumstances where a respondent has not presented a defence to the alleged discrimination.

7The applicant submitted that the Tribunal should adopt procedures akin to the summary judgement process in civil litigation, which permits courts to dispose of unmeritorious claims or defences in order to facilitate the fair and efficient resolution of disputes. The applicant submitted that the Tribunal should apply the test for granting summary judgement, i.e., whether there “is a genuine issue for trial”. The applicant submitted that in this case the materials filed with the Tribunal, including the investigator’s conclusions, the Response and recordings of a meeting in January 2015, indicate that there is no genuine issue for hearing. The applicant submitted that the Tribunal is able to dispose of significant portions of the Application based on the respondent’s “evidence” and its witnesses recorded statements. The applicant submitted that it was in the interest of justice that the issues be narrowed based on the investigator’s findings.

The Respondent’s Submissions

8The respondent submitted, first of all, that it has made only the admissions identified in an appendix to its submissions and denies it made any other admissions. The respondent submitted that the applicant must prove, through evidence, his claims of discrimination that have not been admitted. In particular, the respondent submitted that there is significant dispute about the investigator’s findings. The respondent asserts that the applicant’s summary of the investigator’s findings is not accurate in the Request. The respondent set out where it differs with the applicant’s characterization of the investigator’s conclusions.

9The respondent submitted that the applicant bears the onus of establishing a prima facie case of discrimination regarding each of his claims, the test for which is set out in the jurisprudence. See, for example, Peel Law Association v. Pieters, 2014 ONCA 396 at paragraphs 55 and 56. The respondent submitted that the applicant has not presented any evidence that would establish his claim beyond the express admissions of the respondent. The respondent pointed out that the hearing has not begun; therefore, none of the documents filed by the parties have been identified by a witness and there has been no testimony to provide context for the documents. The respondent asserted that the applicant’s recording does not, by itself, establish his claim. Consequently, the respondent submitted that there is no factual or legal basis for a finding that the applicant has established a prima facie case of discrimination. The respondent submitted that neither party has adduced any evidence; therefore, any findings of fact are premature. The respondent also submitted that the Tribunal will be required to make findings of credibility and reliability, which cannot be done without hearing evidence.

10The respondent submitted that pursuant to section 43 of the Code, the Tribunal may not dispose of the Application without affording an oral hearing to the respondent. For convenience sections 43(2)1 states as follows:

The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:

1. An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.

The respondent submitted that, similarly, section 10.1(a) of the Statutory Powers Proceeding Act provides that a party to a proceeding may “call and examine witnesses and present evidence and submissions”. The respondent submitted that the Rules do not permit the Tribunal to dispose of the Application in the manner requested by the applicant without allowing the respondent to present its case.

11The respondent submitted that Rule 19A does not apply to responses and cannot be applied to uphold an application without hearing the respondent’s case. The respondent submitted that the Tribunal has dealt with similar requests in other cases. In those cases, the Tribunal rejected the argument that the concept of “no reasonable prospect of success” applies to responses. The Tribunal has also found that a summary hearing is not the same as a motion for summary judgement and that nothing in the Rules permits it to decide in favour of an applicant without hearing the respondent’s case.

12The respondent submitted that to do so would amount to a denial of natural justice. The respondent noted that in a motion for summary judgement the responding party is required to present its evidence in sworn affidavits and the parties are afforded an opportunity to cross-examine the affiants. Accordingly, the presiding judge has before him or her all the evidence the responding party intends to present. The responding party also does not have to file its affidavits until it has received the applicant’s affidavits. Accordingly, the summary judgement process provides extensive pre-hearing procedures. The procedure the applicant requests would have none of the pre-hearing evidence taking procedures available in a motion for summary judgement. As a result, the respondent would have no opportunity to present its evidence.

Analysis and Decision

13For the following reasons, the applicant’s request is denied.

14The Tribunal has rejected very similar requests in previous cases. In L.B. v. Toronto District School Board, 2015 HRTO 490 (“L.B.”) and Cole v. Ontario (Health and Long-Term Care), 2015 HRTO 1746, cases cited by the respondent, the Tribunal rejected the argument that the concept of “no reasonable prospect of success” applies to responses and that it cannot be used to restrict defences. In L.B., above, the Tribunal ruled that the Rules do not permit it to dispose of an application in an applicant’s favour without allowing the respondent to present its evidence. I agree with these decisions, not least because the procedure requested by the applicant would deny the respondent an opportunity to present its case and would amount to a denial of natural justice.

15I also agree with the respondent’s submission that, assuming a procedure akin to a motion for summary judgement was available to the Tribunal, there is in any event no evidence before the Tribunal at this point in the proceeding. The applicant has filed an affidavit, but the respondent has had no opportunity to cross-examine the applicant on it and, as a result, I am not prepared to afford it any weight. The applicant points to the Response and certain other documents and recordings that the parties have filed pursuant to Rule 16. Nothing in Rule 16, or the Rules generally, elevates documents filed by the parties, including those they intend to rely upon, to the status of “evidence”. Rather, these documents must be identified by a witness and entered into evidence in the normal course during the hearing. The same is true regarding witness statements filed under Rule 17. While it is true that the Tribunal sometimes allows witnesses to adopt a witness statement as their evidence, such witnesses must attend the hearing, be affirmed, adopt their statements as their testimony and be subject to cross examination. A witness statement is not equivalent to an affidavit. With respect to evidence, there remain significant disputes about the facts in this case, apart perhaps from the facts expressly admitted by the respondent. This is particularly so regarding the investigator’s evidence. Her evidence will be central to the disposition of this Application and in my opinion it would be premature and improper to make findings of fact about what she did or did not conclude pursuant to her investigation without hearing her viva voce evidence.

Order

16The applicant’s request is denied.