DIVISIONAL COURT FILE NO.: 298/22
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Golam Sarwar Mehedi, Applicant
AND:
Mondalez Bakery International, Mohammad Emdad Ullah, and Kelly Services, Respondents
BEFORE: Stewart, Reid and Nishikawa JJ.
COUNSEL: Golam Sarwar Mehedi, in person
Richelle Pollard and Kaley Dodds, for Mondalez Canada Inc.
Frank Cesario and Justin Choy, for Kelly Services of Canada Inc.
Brian Blumenthal, for the Human Rights Tribunal of Ontario
No one appearing for Mohammad Emdad Ullah
HEARD at Toronto: March 13, 2023 (by videoconference)
ENDORSEMENT
The Court
Overview
1The Applicant, Golam Sarwar Mehedi, brings an application for judicial review challenging the decision of the Human Rights Tribunal of Ontario (the “HRTO”) to dismiss his application for lack of jurisdiction (the “Decision”) and the HRTO’s dismissal of the Applicant’s request for reconsideration (the “Reconsideration Decision”). The HRTO dismissed the Applicant’s application because of the lack of any alleged link between the impugned conduct and a protected ground under the Human Rights Code, R.S.O. 1990, c. H 19 (the “Code”).
2The Applicant submits that the Decision was unreasonable and that the HRTO denied him procedural fairness.
3At the hearing on March 13, 2023, we dismissed the Applicant’s application for judicial review with reasons to follow.
Background
4In October 2019, the Applicant was placed on temporary assignment at the Scarborough facility of the Respondent, Mondalez Canada Inc. (“Mondalez”),1 by the Respondent, Kelly Services Canada Inc. (“Kelly”), a temporary staffing agency. He was responsible for packaging cookies.
5The Applicant alleges that while working at Mondalez on October 1, 2019, he was struck three times on his left arm by another employee, the Respondent, Mohammad Emdad Ullah. The Applicant alleges that he complained to a supervisor, Cindi Dhillon, but that she refused to take any action. The Applicant also reported the incident to Holly Hardison, a supervisor at Kelly, as a result of which he was assigned to a shift different from that of Mr. Ullah. On October 22, 2019, Kelly terminated the Applicant’s employment, stating that he was too slow. On October 24, 2019, the Applicant filed a report with the police regarding the alleged assault.
6In his application to the HRTO, the Applicant alleged that he was discriminated against by the Respondents on the basis of ethnic origin, gender identity, marital status, age, and record of offences. The Applicant also alleged reprisal or threat of reprisal in the area of employment. The Applicant alleged that he was terminated from his assignment with Mondelez for reporting the alleged workplace assault. He claimed $100,000 for “financial and punitive damages” and requested that criminal charges be laid against Mr. Ullah.
7On May 8, 2020, the HRTO informed the Applicant that his application was incomplete and provided him with an opportunity to provide further information to support his application. The Applicant then delivered an amended application. On May 22, 2020, the HRTO informed the Applicant that it intended to dismiss his application because it fell outside of its jurisdiction. The HRTO further advised the Applicant that he had the opportunity to file written submissions in response, which the Applicant delivered on June 1, 2020.
8On January 21, 2022, the HRTO delivered a second notice to the Applicant in which it maintained its position that the application fell outside its jurisdiction. The notice informed the Applicant that he was to provide written submissions by February 22, 2022, failing which the application would be deemed to have been abandoned. The Applicant delivered further submissions in response to the notice on January 31, 2022.
9On February 24, 2022, the HRTO dismissed the application, finding that the Applicant had failed to do more than make bald allegations of adverse treatment and express his disagreement with the termination of his assignment with Mondelez.
10On March 10, 2022, the Applicant requested that the HRTO reconsider the Decision. On March 29, 2022, the HRTO issued its Reconsideration Decision in writing, declining to exercise its discretion to reconsider the Decision. The HRTO held that the Applicant failed to establish a reason for reconsideration under Rule 26.5 of the HRTO’s Rules.
Analysis
Preliminary Issues
Lack of Service
11At the hearing, the Applicant alleged that he had not been served with Mondalez’ materials and that the affidavit of service was false. We reject this submission. There is no basis upon which to believe that the affidavit of service was falsified. Moreover, at no time did the Applicant raise the absence of materials from Mondalez with their counsel or with the court. In any event, the materials were uploaded to CaseLines, as required by the case management direction and were available to the Applicant. The Applicant also filed additional materials after the timeline specified in the case management direction, including a reply factum for which leave had not been granted. As a result, the Applicant had more than ample opportunity to respond to the arguments raised by Mondalez.
Delay
12Kelly raised the issue of delay, arguing that the application was filed two weeks after the expiry of the 30-day period under s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. We decline to dismiss the application for delay. The delay is not lengthy. The Applicant, who is self-represented, consulted with a lawyer at the Human Rights Legal Support Centre in April 2022, evidencing an intention to seek judicial review during the 30-day period. Moreover, Kelly did not suggest that it was prejudiced by a delay of two weeks.
Was the Decision Reasonable?
13The parties agree that the standard of review is reasonableness. As mandated by the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 85, a reasonableness review requires that this court exercise deference toward the decision under review. See also: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, at para. 82.
14In our view, the HRTO’s decision to dismiss the Application for lack of jurisdiction was reasonable.
15The HRTO “does not have the jurisdiction over general allegations of unfairness unrelated to the Code”: Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858; Bello v. Toronto Transit Commission, 2014 ONSC 5535. To fall within the HRTO’s jurisdiction, “an Application must provide some factual basis beyond a bald assertion which links their ground(s) to the respondents’ actions and explains why they think that these actions are discriminatory in nature”: Hay, at para. 8.
16In Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 (Div. Ct.), this Court upheld the HRTO’s dismissal of an application for lack of jurisdiction on the basis that the applicant had failed to establish a basis “beyond mere speculation and accusations” that the respondent’s conduct was discriminatorily linked to an enumerated ground. In this case, the Applicant’s submissions to the HRTO did not even go that far. The Applicant stated only that he was a “Bengali man” and that he believed that Mr. Ullah was also Bengali. The Applicant’s submissions were devoid of any allegations linking a protected ground to the alleged assault by Mr. Ullah or to the Applicant’s subsequent dismissal. The Applicant failed to allege any nexus between a ground protected under the Code and the alleged discriminatory conduct committed by the Respondents.
17Having carefully examined the application and the Applicant’s written responses to the two notices delivered by the HRTO, the HRTO held that the Applicant failed to provide a factual basis that linked the conduct of the Respondents to an enumerated protected ground under the Code. The Decision clearly reflects “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov, at paras. 83 and 85.
18The HRTO did not, as the Applicant submits, shift the burden of proof. To establish a prima facie case, the onus was on the Applicant to show, among other things, that a protected characteristic was a factor in the adverse treatment: Moore v. British Columbia, 2012 SCC 61, at para. 33.
19Similarly, the Reconsideration Decision was reasonable in finding that the Applicant had failed to establish any of the available grounds for reconsideration under Rule 26.5 of the HRTO’s Rules. Moreover, reconsideration is a discretionary remedy. The HRTO’s exercise of discretion is thus entitled to a high degree of deference: Paul James v. York University and Ontario Human Rights Tribunal, 2015 ONSC 2234, at para. 57. We see no reason to interfere with the Reconsideration Decision.
Was the Applicant Denied Procedural Fairness?
20The Applicant alleges that the HRTO denied him procedural fairness because the application was dismissed without documentary disclosure from the Respondents and/or a summary hearing or mandatory mediation.
21In respect of procedural fairness, the court must determine whether the required level of procedural fairness was accorded: Graham v. New Horizon System Solutions, 2023 ONSC 310 (Div. Ct.). The factors relevant to assessing procedural fairness include: (i) the nature of the decision being made and the process followed in making it; (ii) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (iii) the importance of the decision to the party; and (iv) the choice of procedure selected by the administrative tribunal. A court must give weight to a tribunal’s choice of procedures and institutional constraints. Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-28.
22Section 41 of the Code grants the HRTO the ability to “adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the HRTO will facilitate fair, just and expeditious resolution of the merits of the matters before it.” The HRTO is not required to hold a summary hearing or mandatory mediation, particularly if it is clear that the complaint is outside its jurisdiction. Rule 13.1 of the HRTO’s Rules provides that the “Tribunal may, on its own initiative or at the request of a Respondent, filed under Rule 19, dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.” It is clear that the HRTO is not required to hold an oral hearing on the issue of jurisdiction: Iyirhiaro v. Human Rights Tribunal of Ontario, 2012 ONSC 3015, at para. 12.
23Similarly, mediation pursuant to Rule 15A of the HRTO’s Rules is voluntary and is commenced only at the agreement of both parties. The HRTO was not required to hold a mediation before dismissing the application.
24Not only was the HRTO not required to hold a mediation or summary hearing, it acted in accordance with its Rules when it delivered Notices of Intent to Dismiss under Rule 13.2 in May 2020 and January 2022. The Notices of Intent to Dismiss informed the Applicant that he was entitled to provide written submissions. The Applicant availed himself of the opportunity to deliver written submissions in response to both notices. A dismissal under Rule 13 does not involve any documentary disclosure, and instead, is only concerned with whether it is “plain and obvious” on the face of the application that it does not fall within the HRTO’s jurisdiction.
25The Applicant’s claim that he was denied procedural fairness because he did not receive submissions from the Respondents is without basis because respondents do not make submissions under a Rule 13 dismissal initiated by the HRTO: Rule 13.2. Furthermore, the Applicant’s claim that the Respondents brought a motion to dismiss the Application, and that he was not notified of same, is incorrect. The Respondents did not participate in the proceedings before the HRTO. The HRTO dismissed the Application on its own initiative, after receiving submissions from the Applicant.
26The Applicant appears to suggest that the HRTO’s decision not to hold a summary hearing discloses a closed mind or reasonable apprehension of bias on behalf of the Vice-Chair. There was, however, no requirement that the HRTO hold a summary hearing. This allegation, without more, is not a sufficient basis to find a reasonable apprehension of bias.
27The Applicant further submits that he was denied procedural fairness because the HRTO required him to establish that he was not a vexatious litigant “without first receiving the submissions of the respondents on this issue.” The record does not support this allegation. The HRTO did not find that the Applicant was a vexatious litigant, nor did the HRTO dismiss the Application as an abuse of process.
Conclusion
28As stated at the hearing on March 13, 2013, the application for judicial review is dismissed.
29The Applicant submits that he should receive costs. The Applicant submitted a bill of costs for $66,829. Mondalez and Kelly have agreed to seek partial indemnity costs totalling $8,000 split equally between them. This amount represents approximately half of their respective partial indemnity costs.
30As the successful parties, Mondalez and Kelly are entitled to costs. We find that the amount of $4,000 each, is fair and reasonable in the circumstances. The Applicant is required to pay Mondalez and Kelly costs in the amount of $4,000 each, all-inclusive.
“Stewart J.”
“Reid J.”
“Nishikawa J.”
Date: March 17, 2023