Citation: 2024 CHRT 135

Date: December 10, 2024

File No. : HR-DP-3014-24, HR-DP-3015-24, and HR-DP-3016-24

Between:

Nicholas Fitz-Allan Cox

Complainant

- and -

Canadian Human Rights Commission

Commission

- and -

Northwest Truck Lines Inc, Kirpal Mangat and Peter Sanghera

Respondents

Ruling

Member: Colleen Harrington

Contents

I. BACKGROUND 1

II. RESPONDENTS’ MOTION 2

III. ISSUE 1: FURTHER PARTICULARS AND DISCLOSURE 2

A. Positions of the Parties 2

B. Analysis 4

IV. ISSUE 2: NEW COMPLAINT ALLEGATION 6

A. Positions of the Parties 6

B. Analysis 10

V. ORDER 13

 

I. BACKGROUND

[1] The Complainant, Nicholas Fitz-Allan Cox, has filed human rights complaints against Northwest Truck Lines Inc, Kirpal Mangat and Peter Sanghera (collectively, the Respondents). He alleges that the Respondents discriminated against him and harassed him in relation to his employment on the basis of his colour, race, and national or ethnic origin. Mr. Cox, who is Black man from Barbados, says he began working as a long-haul truck driver for Northwest Truck Lines Inc (Northwest) on January 5, 2021 under the Temporary Foreign Worker Program. He says he had an employer-specific work permit for Northwest that was valid until September 24, 2022.

[2] Mr. Cox alleges that he was the subject of racist and degrading remarks and ill treatment, and that he was terminated or constructively dismissed in July of 2021, because of his identity as a Black man and a temporary foreign worker. Mr. Cox filed his human rights complaint with the Canadian Human Rights Commission (Commission) in 2021 and the Commission asked the Tribunal to inquire into these complaints in April of 2024.

[3] This matter is currently in the case management stage of the Tribunal’s proceeding. During case management, parties exchange Statements of Particulars (SOP) and relevant documents in their possession, and they may raise preliminary issues for the Tribunal to determine as the matter moves towards a hearing. So far in this proceeding, the Tribunal has ordered that Mr. Cox’s complaints against the three separate Respondents be joined so that they may be heard together in a single inquiry.

[4] In his SOP, submitted on July 29, 2024, Mr. Cox set out a Statement of Facts, which includes the following sub-headings: “Overview”, “Summary of Financial Abuse”, “Summary of Physical Abuse”, “Summary of Psychological Abuse and Overt Racism”, “Termination”, “Immigration Abuse”, and “Impact on Mr. Cox”. The Statement of Facts section is followed by sections on Legal Issues and Remedies, as well as a List of Documents and a List of Witnesses.

[5] The Commission, as a separate party to this proceeding, has filed its own SOP.

II. RESPONDENTS’ MOTION

[6] In a letter dated August 14, 2024, and prior to their deadline for filing their SOP, the Respondents raised issues with Mr. Cox’s SOP. The first issue relates to the Respondents’ view that Mr. Cox’s SOP and disclosure of arguably relevant documents are deficient in certain respects. The second issue relates to the Respondents’ allegation that Mr. Cox has introduced a new complaint in his SOP that the Commission did not have a chance to consider during its screening process. The Respondents sought, and have been granted, an adjournment of their SOP deadline until such time as these issues have been resolved. I provided the parties with timelines to permit Mr. Cox to file an amended SOP and to respond to the issues raised by the Respondents.

[7] This Ruling deals with both of the issues raised by the Respondents and sets out next steps to keep the complaints moving towards a hearing.

III. ISSUE 1: FURTHER PARTICULARS AND DISCLOSURE

A. Positions of the Parties

[8] The Respondents submit that information and disclosure with regard to one of the remedies Mr. Cox is seeking are deficient.

[9] Mr. Cox is asking the Tribunal to order that he be reimbursed by the Respondents for all of his unpaid and lost wages. The Respondents note that Mr. Cox’s SOP “makes no submissions with regard to [his] period of unemployment.” They also state that Mr. Cox has not provided them with any documentation or evidence relating to the length of his unemployment, his mitigation efforts, or his receipt of government benefits, all of which are crucial to the determination of lost wages.

[10] In his August 27, 2024 letter of response accompanying his amended SOP, Mr. Cox disagrees with the Respondents’ position. He notes that, in his SOP, he did indicate that he was approved for a Vulnerable Worker Open Work Permit on August 17, 2021. He also amended his SOP to indicate that he returned to work within a few days of receiving this work permit, on August 31, 2021. Mr. Cox states in his letter of response that, as a migrant worker with a closed work permit under the Temporary Foreign Worker Program, he was ineligible to begin working after his alleged termination until after he received his open work permit. He states that the fact that he “applied for the open work permit and went back to work very shortly after receiving one demonstrates clear efforts to mitigate his losses.”

[11] Mr. Cox also amended his SOP to note that, during his period of unemployment, he applied for and received approximately $2,500 in Employment Insurance (EI).

[12] The Respondents’ September 6, 2024 reply notes that, while Mr. Cox has amended his SOP to indicate an exact date on which he began subsequent employment, thereby clarifying the period of unemployment, he has not provided any documents to substantiate this claim.

[13] The Respondents request the following documents, which they note are or ought to be readily available to the Complainant and are “evidently relevant to the Complaint”:

1. All documents relating to his employment with the employer subsequent to the Respondents, including but not limited to:

1. Job application;

2. Job description;

3. Offer letters;

4. Contract of employment;

5. Income; and

6. Term of employment, if applicable.

2. All documents relating to his employment with any employers following that which is described above, if applicable.
3. All income tax statements from 2020 to the present.
4. All documents relating to receipt and amount of Employment Insurance during the period of unemployment.
5. All documents relating to any other government/insurance benefits received during the period of unemployment.
6. All documents related to the Complainant’s Vulnerable Worker Open Work Permit application.

[14] The Respondents submit that such information is relevant to assessing the Complainant’s lost wages if he is successful in proving discrimination.

B. Analysis

[15] The requirement to ensure that all parties are treated fairly in the Tribunal’s process is enshrined in the Canadian Human Rights Act, R.S.C. 1985, c.H-6 [CHRA]. Section 50(1) of the CHRA says the Tribunal must give all parties a “full and ample opportunity” to “present evidence and make representations”. This includes the right to receive disclosure from the other parties prior to the hearing.

[16] The Canadian Human Rights Tribunal Rules of Procedure, 2021 SOR/2021-137 [Rules] require the parties to disclose all non-privileged documents in their possession “that relate to a fact or issue that is raised in the complaint or to an order sought by any of the parties” (see Rules 18(1)(f), 19(1)(e), 20(1)(e) and 23(1)). This disclosure obligation is ongoing (Rule 24(1)).

[17] In deciding whether to order a party to disclose certain documents, the Tribunal must consider whether the information at issue is “arguably relevant” to the complaint before the Tribunal (Brickner v RCMP, 2017 CHRT 28 at para 5). This means that a party seeking production of documents must demonstrate that there is a rational connection between the documents sought and a fact, issue or remedy at play in the inquiry. The parties’ SOPs serve as a guide for determining whether a document is arguably relevant or not (Casler v CNR, 2017 CHRT 6 [Casler] at para 9).

[18] Receiving all arguably relevant documents helps ensure that parties are aware of the case they are facing and can adequately prepare for the hearing (Egan v Canada Revenue Agency, 2019 CHRT 8 at para 4).

[19] Although arguable relevance is not a particularly high threshold, when considering requests for documents the Tribunal should also be mindful of the principle of proportionality. Tribunal proceedings are to “be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow” (s.48.9(1) of the CHRA). Requests for production should not be speculative or amount to “fishing expeditions”, nor should they subject recipients to onerous and far-reaching searches (Nwabuikwu v RCMP, 2020 CHRT 9 at para 16).

[20] Even if the Tribunal orders documents to be produced at the pre-hearing stage, this does not necessarily mean they will be admitted as evidence at the hearing or given significant weight if they are admitted.

[21] In this case, the Respondents are seeking extensive documentation relating not only to the job Mr. Cox obtained after he worked for the Respondents, but also documents relating to all of the jobs he has had after that. They are also asking for his income tax statements from 2020 to the present. The extent of the documents requested by the Respondents appears to be out of proportion to the remedy that Mr. Cox is seeking.

[22] According to his SOP, Mr. Cox says he was terminated or constructively dismissed on or about July 8, 2021, that he received his open work permit allowing him to seek other employment just over a month later, on August 17, 2021, and that he started a new job on August 31, 2021.

[23] Mr. Cox is seeking an order for “payment of all unpaid wages”, as well as “all lost wages [he] suffered during his period of unemployment”. By “unpaid wages”, I understand Mr. Cox to be referring to wages he did not receive during his employment with the Respondents, as he says in his SOP that he was “not paid for all of his work”. The “lost wages” he seeks in relation to his period of unemployment would appear to cover the period between his alleged termination on or about July 8, 2021 and the start of his next job on or about August 31, 2021. This is a period of just over one month.

[24] Based on the wording of his SOP, I do not understand Mr. Cox to be asking for the difference in wages between what he earned with the Respondents and what he earned in his subsequent job. As such, I do not see the arguable relevance of the information sought by the Respondents relating to all of the jobs he has had since working for the Respondents, and his income earned from all of those jobs, aside from the confirmation of his start date with his subsequent employer (in August 2021) and his income tax statement for 2021 only.

[25] With regard to mitigating his losses between the end of his employment with Northwest and the start of his next job, I agree that documents relating to his application for, and receipt of, the Vulnerable Worker Open Work Permit are arguably relevant, as are any job applications made during this time period, as well as any statements relating to his receipt of EI or other government benefits during this period of unemployment.

[26] I set out the specific documents that Mr. Cox is ordered to produce to the Respondents and Commission in the Order section below. I note that the Tribunal’s Rules require parties to disclose arguably relevant documents “in their possession”, so Mr. Cox should make best efforts to obtain these documents and provide them to the Respondents and Commission. Of course, he may also provide oral evidence and be asked questions by the other parties about the remedies he is seeking when he testifies at the hearing, whether documentary evidence is available to be introduced or not.

[27] I note that, in addition to the lost wages issue, the Respondents were seeking further particulars with regard to the allegations detailed under the sub-heading “Summary of Psychological Abuse and Overt Racism” in the Statement of Facts section of Mr. Cox’s SOP. However, it appears that this issue has been dealt with through the Complainant’s response and amended SOP. If Mr. Cox becomes aware of further specifics or documents with respect to these allegations, he should provide them to the Respondents as soon as possible so that they are able to respond in a timely and informed manner.

IV. ISSUE 2: NEW COMPLAINT ALLEGATION

A. Positions of the Parties

[28] The Respondents argue that Mr. Cox should not be permitted to advance what they describe as “new complaints raised by the Complainant in [his] SOP.” They submit that the paragraphs under the sub-heading “Immigration Abuse” were not included in his complaint to the Commission, and so were not considered by the Commission in its Report for Decision.

[29] The allegations of immigration abuse relate to Mr. Cox’s position that actions taken by the Respondents around the time of his alleged termination or constructive dismissal resulted in him missing the opportunity to apply for Permanent Resident status under a particular immigration program called the Temporary Resident to Permanent Resident Pathway. He suggests that, as a result of missing out on this opportunity, he still has not obtained Permanent Resident status in Canada. Mr. Cox seeks remedies in relation to the immigration abuse allegations.

[30] The Respondents argue that, as Mr. Cox was aware of the immigration abuse allegations at the time his other complaints were before the Commission, he was capable of pursuing them then. As such, they argue that he should be barred from advancing them at this stage of the proceeding, as the limitations period has long passed.

[31] Mr. Cox disagrees that he could have filed a complaint about the alleged immigration abuse at the same time as his other complaints. He says that he filed his initial complaint with the Commission on or around July 21, 2021 and the Temporary Resident to Permanent Resident immigration stream that he was planning to apply under had filled up only a few days before that. He says that, at the time he filed his human rights complaint, the full scope of what happened or how it might affect his future opportunities for permanent residence was not known to him. However, he says that, as the details became clearer, he did inform the Commission. He notes that, in a September 1, 2022 submission to the Commission, he stated that the Respondents had called the police on him “and interfered with his immigration application, losing him the opportunity to apply for permanent residence”.

[32] Mr. Cox also indicates that he had included correspondence with the immigration consultant he was using as part of his list of evidence provided to both the Commission and to the Respondents’ counsel. As such, he argues that the Respondent was aware of this aspect of his complaint well in advance of his August 2024 SOP. Mr. Cox further notes that the Respondents’ August 14, 2024 letter was the first time the Respondents had decided to take issue with these allegations.

[33] Mr. Cox submits that, even if immigration abuse is found to be a new argument that he is barred from advancing, the immigration consequences are still relevant to the remedies that he is seeking. He says his termination effectively prevented him from applying for Permanent Residence under the Temporary Resident to Permanent Resident Pathway, which led to “longstanding consequences for his ability to access permanent residence in Canada” and that his pain and suffering as a result has been immense. Mr. Cox says this is why he should be awarded the maximum amount of $20,000 available under s.53(2)(e) of the CHRA.

[34] The Commission also provided submissions with regard to this issue. It notes that the Respondents are effectively asking the Tribunal to strike the immigration abuse allegations from Mr. Cox’s SOP. The Commission argues, however, that these allegations do not present a new complaint, but rather provide contextual information and evidence in support of Mr. Cox’s complaint of discrimination and harassment in employment.

[35] The Commission submits that the immigration abuse allegations constitute events that are related to Mr. Cox’s allegations that the two personal Respondents and other employees at Northwest made racially demeaning comments and treated him adversely because of his identity as a Black man and a temporary foreign worker.

[36] The Commission agrees that it was alerted to the immigration abuse issues during its screening process through Mr. Cox’s September 1, 2022 reply to the Respondents’ response to the complaint. However, the Commission submits that, even if Mr. Cox had not alerted the Commission, the Tribunal could still accept the allegations in the form of particulars in assessing the seriousness of Mr. Cox’s human rights complaint.

[37] The Commission relies on Tribunal case law to support its position that the Respondents’ request to strike the immigration abuse allegations from Mr. Cox’s SOP should be dismissed. It notes that Mr. Cox alleges he was discriminated against based on protected characteristics that include his status as a temporary foreign worker, which is directly linked to the prohibited ground of national or ethnic origin. Therefore, it argues, the immigration abuse allegations have a sufficient and reasonable nexus to the original complaint (Levasseur v Canada Post Corporation, 2021 CHRT 32 at para 16). The Commission argues that, to bar Mr. Cox from addressing the Respondents’ alleged adverse treatment in relation to his immigration status would deny him the opportunity to present his version of events and experiences with the Respondents fully and amply.

[38] The Commission submits that human rights proceedings are open to refinement as new facts and circumstances come to light (Letnes v RCMP, 2019 CHRT 41 at para 5; Casler at paras 8-9). While this is not a request to amend his particulars, the Commission notes that the Tribunal may grant such requests to ensure that a party’s SOP properly and fairly reflects the issues that are in dispute between the parties.

[39] In response, the Respondents argue that, simply because details of immigration abuse were mentioned by Mr. Cox in the Commission’s process, this does not amount to notice that this forms part of his complaint and that he seeks remedies for these allegations. They say the Complainant’s SOP is the first time he has sought remedies with respect to immigration abuse.

[40] The Respondents disagree that the immigration abuse allegations respect the substance of the original complaint or elaborate on allegations raised in the complaint. They state that, while certain portions of the particulars may provide helpful context for understanding the main allegations of the complaint, they should not lead to claims for remedies that were not the subject of the original complaint. They submit that the Complainant can testify about his heightened vulnerability due to his immigration status without making a new claim for remedies arising from immigration abuse.

[41] The Respondents ask the Tribunal to “strike the Complainant’s ‘immigration abuse’ allegations, and remedies sought with respect to them.” They add that, if the Tribunal allows the immigration abuse allegations to proceed, then they are seeking further documents and information about these allegations. In particular they seek:

1. All communications with the immigration consultant, Mayfair Immigration Services Ltd. before and after the dates already produced, to the extent such communication exists;
2. All information and documentation with regard to the Complainant’s attempts to attain Permanent Residence by way of:

1. Temporary Resident to Permanent Resident Pathway; and

2. BC Provincial Nominee Program in 2022, 2023 and 2024.

3. All documents substantiating the cost for permanent residence applications and associated fees.

B. Analysis

[42] The case law referred to and relied upon by the Commission is of assistance in considering the Respondents’ request to strike the immigration abuse allegations from the Complainant’s SOP.

[43] The basis for the Respondents’ motion is that the allegations under the sub-heading “Immigration Abuse” in the Complainant’s SOP did not appear in the original complaint form filed with the Commission. The Respondents do not dispute that Mr. Cox raised the issue of immigration abuse in the Commission’s screening process, through his reply submission. Rather, they take the position that his SOP is the first time he has sought remedies with respect to the alleged immigration abuse. I note, however, that the form Mr. Cox completed to file his human rights complaint with the Commission in July of 2021 states explicitly that there is a 3-page limit, and it does not set out the remedies sought. The SOPs filed with the Tribunal present the first opportunity for parties to provide their positions with respect to the remedies they are asking the Tribunal to order.

[44] It is well established that, when advancing their cases before the Tribunal, complainants are not strictly confined to the allegations initially outlined in the complaint form they filed with the Commission. The Tribunal has previously stated that this original complaint does not alone determine the scope of a hearing, with the Tribunal describing the form as “inherently approximate” (Gaucher v CAF, 2005 CHRT 1 at para 10). The complaint filed with the Commission is only the first step in the dispute resolution process set out in the CHRA, after which new facts and circumstances often arise (Lafrenière v Via Rail Canada Inc., 2017 CHRT 9 at paras 18 and 34).

[45] The parties’ SOPs set the precise terms of a hearing before the Tribunal and provide the parties with an opportunity to elaborate on allegations raised in the original complaint, so long as they respect the substance of the original complaint (Casler at paras 8,9).

[46] The Tribunal has the jurisdiction to amend, clarify and determine the scope of a complaint, as long as no prejudice is caused to the other parties (Mohamed v Royal Bank of Canada, 2023 CHRT 20 at para 7). While the Tribunal has the power to strike portions of a party’s SOP that exceed the scope of a complaint, it must exercise this authority cautiously and only in the “clearest of cases” (Richards v. Correctional Service Canada, 2020 CHRT 27 at para 86).

[47] I agree with the Commission that the immigration abuse allegations do not present an entirely new human rights complaint. Rather, they respect the substance of the original complaint and are an extension of the allegations Mr. Cox raised in that complaint, as they describe actions he alleges the Respondents took in relation to his employment around the time of his termination.

[48] I agree that there is a factual foundation in Mr. Cox’s original complaint that establishes a reasonable nexus with the immigration abuse allegations set out in his SOP. In his original complaint form, Mr. Cox details what he says happened between July 8 and 17, 2021. This includes allegations that the two individual Respondents falsely accused him of hitting one of them when he raised the issue of someone at Northwest altering his e-log. He says they called the police on him and told him to remove his belongings from his truck and hand over his keys and to not contact them until they contacted him, which they did on July 9. Mr. Cox says that, after seeking legal advice, he emailed the Respondents on July 17, 2021 stating that their actions on July 8 had constituted termination and, at the very least, their abusive behaviour had constituted constructive dismissal.

[49] In his SOP, Mr. Cox includes these same allegations and follows them with the “Immigration Abuse” allegations which state that, “At the time of his termination, Mr. Cox was preparing an application for permanent residence under the Temporary Resident to Permanent Resident Pathway, and was using the services of an immigration consultant, Mayfair Immigration Services Ltd. The Respondent contacted the consultant, who was not their representative, and told him not to give their employment offer letter to Mr. Cox.” Mr. Cox alleges that, after he sought legal assistance, he was finally provided with a copy of the Employment Offer letter and he planned to use the letter to apply for permanent residence, along with an explanation about his recent termination. However, around the time he received the documents, the “Workers in Canada: essential, non-health care” stream of the program had filled up and Mr. Cox could no longer apply, and the Temporary Resident to Permanent Resident Pathway did not reopen.

[50] In his human rights complaint, Mr. Cox indicates that he had started working for Northwest as a long-haul truck driver on January 5, 2021 under the Temporary Foreign Worker program and his work permit was valid until September 24, 2022. In his SOP he further elaborates that he had an employer-specific work permit, which meant that he was only allowed to work for Northwest under this permit. It seems clear that Mr. Cox’s status in Canada was linked to his employment with the Respondents at the time relevant to his complaint.

[51] Mr. Cox should be permitted to submit evidence before the Tribunal that the Respondents, as his work permit-linked employer, took actions that affected his immigration status around the time that he says he experienced a discriminatory termination (and accused them of constructively dismissing him). He can pursue the argument that there is a nexus between these allegations and his broader case alleging discrimination and harassment relating to his employment with the Respondents, that he says occurred “since the beginning of his employment” with the Respondents.

[52] Mr. Cox still bears the burden of proving that the events he describes in his SOP happened and that there is a link between the alleged harassment and adverse treatment - including in relation to his permanent resident application - and a protected ground under the CHRA. He must also establish that there is a causal link between the alleged discrimination and any losses experienced, meaning the Tribunal can only order remedies that flow from the discrimination (Chopra v Canada (Attorney General), 2007 FCA 268 at paras 32, 37).

[53] I do not agree that permitting the immigration abuse allegations to remain in Mr. Cox’s SOP will result in prejudice to the Respondents. While they may disagree with the allegations, they will have the opportunity to reply to these allegations in their own SOP and to request further disclosure in relation to them. They may of course challenge the allegations during the Tribunal’s hearing process.

[54] The Respondents’ motion to strike particulars from the Complainant’s SOP is dismissed.

[55] As I agree to allow the immigration abuse allegations to remain in the Complainant’s SOP, I have also considered the issue of whether Mr. Cox should provide further arguably relevant documents to the Respondents. I note that the Respondents are seeking “All communications with the Immigration consultant, Mayfair Immigration Services Ltd. before and after the dates already produced, to the extent such communication exists”. The Tribunal is not aware of the dates of such communications that have already been produced. However, it appears that the Complainant’s communications with Mayfair Immigration Services in relation to his application for Permanent Resident status from 2021 to the present would be relevant.

[56] I note that the Respondents must also provide their correspondence with Mayfair Immigration Services in relation to Mr. Cox, from 2021 to the present.

[57] The Respondents also seek the following documents which I agree are arguably relevant to Mr. Cox’s complaint and so will order them to be disclosed:

1. All information and documentation with regard to the Complainant’s attempts to attain Permanent Residence by way of:

1. Temporary Resident to Permanent Resident Pathway; and

2. BC Provincial Nominee Program in 2022, 2023 and 2024.

2. All documents substantiating the cost for permanent residence applications and associated fees.

V. ORDER

[58] The respondent’s motion to strike particulars from the Complainant’s SOP is dismissed.

[59] Within 45 days of the date of this Ruling, Mr. Cox is ordered to provide the following documents (to the extent that they are in his possession or he has access to them and they are not privileged) to the other parties:

1. job applications made during his period of unemployment in July and August of 2021;
2. document(s) confirming his start date with his subsequent employer in August of 2021;
3. his income tax statement for 2021;
4. documents relating to his application for and receipt of the Vulnerable Worker Open Work Permit;
5. any statements relating to his receipt of EI or other government benefits during this time of unemployment;
6. His communications from 2021 to the present with Mayfair immigration in relation to his application for Permanent Resident status;
7. All information and documentation with regard to the Complainant’s attempts to attain Permanent Residence by way of:

1. Temporary Resident to Permanent Resident Pathway; and

2. BC Provincial Nominee Program in 2022, 2023 and 2024.

8. All documents substantiating the cost for permanent residence applications and associated fees.

[60] The Respondents are ordered to provide the following documents to the other parties: their correspondence with Mayfair Immigration Services in relation to Mr. Cox, from 2021 to the present.

[61] The Respondents are to file their SOP, and provide their additional disclosure to the other parties, by February 7, 2025.

[62] The Complainant and Commission are to file their Replies to the Respondents’ SOP by February 25, 2025.

Signed by

Colleen Harrington

Tribunal Member

Ottawa, Ontario

December 10, 2024

Canadian Human Rights Tribunal

Parties of Record

File Nos. : HR-DP-3014-24, HR-DP-3015-24, and HR-DP-3016-24

Style of Cause: Cox v Northwest Truck Lines Inc, Mangat and Sanghera

Ruling of the Tribunal Dated: December 10, 2024

Motion dealt with in writing without appearance of parties

Written representations by:

Nicholas Fitz-Allan Cox, the Complainant

Caroline Carrasco, for the Canadian Human Rights Commission

Derek Frenette and Alireza Alimadad, for the Respondent