Docket: T-1160-11
Citation:
2012 FC 369
Ottawa,
Ontario, March 29, 2012
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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AMIYA KHARE
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Applicant
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and
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BELL CANADA
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
Mr.
Khare filed a complaint with the Canadian Human Rights Commission that Bell
Canada had treated him adversely on the prohibited ground of religion.
[2]
The
basis is that over a short period of time two Bell technicians
had come to his home to set up necessary equipment. Mr. Khare and his family
are Hindu. They have a prayer room downstairs. The first technician was told to
remove his shoes. He refused. Later another Bell technician
came to the house while Mr. Khare was absent. However, both his wife and
mother were present. Oblivious to what had previously happened, they allowed
the technician in. Despite being requested to remove his shoes, he went
downstairs into the prayer room with his shoes on.
[3]
A
member of the Commission’s Resolution Services Division was led to understand
that Mr. Khare had first made a service request to Iristel Canada, a provider
of Voice over Internet Protocol services. Iristel Canada forwarded
the call to a Bell Canada subcontractor, Bell Technical Solutions Inc., whose
technicians were dispatched.
[4]
Iristel
Canada is completely independent of Bell Canada. Although
Bell Technical Solutions Inc. is a Bell subsidiary, it is an
independent legal entity.
[5]
The
conclusion was that it was plain and obvious that Bell Canada was not the
appropriate respondent as it was not the employer of the technicians who were
alleged to have discriminated against Mr. Khare on the basis of his religion.
He was informed he had the opportunity to file a complaint against Iristel Canada and Bell
Technical Solutions Inc.
[6]
Mr.
Khare has refused to do so. Rather, he has sought a judicial review of the
Commission’s refusal to investigate.
[7]
During
the hearing, I explained to Mr. Khare, who was self-represented, that this is
not a breach of contract case in which, barring clauses to the contrary, a
contracting party is liable for the acts of subcontractors.
[8]
Under
the Canadian Human Rights Act, an individual who has reasonable grounds
to believe that a “person” is engaged or has engaged in a discriminatory practice
may file a complaint with the Commission. The case law is such that the
Commission, at an early screening stage, may decide not to deal with the
complaint if it is plain and obvious that there is not a prima facie case
of discrimination. The question in this case is whether there was a prima
facie case of discrimination by Bell Canada. The only
basis on which there could be a case against Bell Canada is that it
was the employer of the two technicians. The fact of the matter is that Bell
Canada was not their employer.
[9]
Mr.
Khare, after receiving the decision of the Commission not to proceed with the
complaint, wrote to say: “Your reasoning is equivalent to saying that the
Federal Government is not responsible for Human Rights Commission”. That is
quite correct. Although the Commission was established by Parliament, it is an
independent body and is frequently called upon to investigate complaints of
adverse discrimination by the Federal Government and, where the circumstances
are justified, holds the government to account.
[10]
In
its written memoranda, Bell Canada sought costs, and repeated that request
during the hearing. Costs are a matter of discretion, but usually follow the
event. Mr. Khare had every opportunity to re-file against the technicians’
employers. He chose not to do so. Bell Canada has been put
to trouble for no valid reason and is entitled to costs. A very quick
calculation, at the conclusion of the hearing, based on Column 2 indicated fees
of at least $650, not counting disbursements. In my discretion, I shall fix
costs at $500, all inclusive.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
This
application for judicial review is dismissed.
2.
Costs
are taxed in favour of the respondent, Bell Canada, in the
amount of $500.
“Sean Harrington”
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