Carlisle Roopchand v PCS Nitrogen Trinidad Ltd

• Jurisdiction: Trinidad & Tobago
• Judgment Date: 29 May 2020
• Docket Number: E.O.T No. 0015 of 2017
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)

Between

Carlisle Roopchand

Complainant

and

PCS Nitrogen Trinidad Limited

Respondent

E.O.T No. 0015 of 2017

EQUAL OPPORTUNITY TRIBUNAL

APPEARANCES:

Mr. Sarfraz N. Alsaran for the Complainant.

Mr. Faarees F. Hosein for the Respondent.

DECISION ON PRELIMINARY POINTS

Contents

The Application	3
The Submissions	4
Issues	4
Law and Analysis	4
Jurisdiction of the Tribunal	5
Limits on the evidence that can be adduced at the Tribunal	5
Annexure of supporting documents to the Complaint	8
The Striking Out Application	8
Disposition	14

The Application

1 These proceedings 1 were instituted by referral from the Equal Opportunity Commission (‘the Commission’) dated 16th August 2017. By Notice of Application on March 6, 2019 (‘the Application’) the respondent sought the following orders—

• (i) That the Equal Opportunity Tribunal (‘the Tribunal’) lacks the jurisdiction to hear and determine the complaint (‘the Complaint’) as the Complaint does not come within the meaning of Section 3 2 of the Equal Opportunity Act, Chap 22:03 (‘the Act’);

• (ii) Alternatively, that on the facts and matters set out in the complainant's Claim [sic] 3 Form and/or on the averments contained in the Claim Form the claim under the Act is unmaintainable and/or wholly misconceived and the same ought to be struck out as an abuse of process in accordance with Part 26 4.2(1)(a) and/or (b) and (c) of the

  Civil Proceedings Rules 1998 (as amended) (‘CPR’) as the same applies to the Tribunal;

• (iii) Any further or other Order consequent on the foregoing reliefs as the Tribunal may deem fit.

The Submissions

2 Orders for the filing of written submissions have been complied with by the parties. I have duly considered these submissions, and I intend to treat with them holistically. Where there is no specific mention or ruling on a submission it is due neither to oversight nor to failure to take it into consideration in reaching the decision.

Issues

3 The issues that arise for determination may be set out as –

• (i) Whether the Tribunal has the jurisdiction to determine if the medical condition of the complainant is a disability under section 3 of the Act;

• (ii) Whether evidence can be adduced at the Tribunal that was not part of the conciliation proceedings;

• (iii) Whether the complainant's failure to annex supporting documents to the Complainant Form is fatal to the Complaint;

• (iv) Would evidence be required to determine the applicability in law of section 3 of the Act in the circumstances of this case; and

• (v) Whether the complainant has shown some ground for bringing the Complaint.

Law and Analysis

4 The thrust of the Application is that the medical condition of the complainant is not a disability under the Act, and the Tribunal either lacks jurisdiction to hear the Complaint or it is an abuse of process. In either case the Complaint ought to be dismissed at this stage.

Jurisdiction of the Tribunal

5 The first limb of the Application challenges the jurisdiction of the Tribunal to hear and determine the Complaint. The respondent submits that the facts alleged do not constitute a disability within the Act and therefore the Tribunal lacks the jurisdiction to hear the Complaint.

6 The respondent has submitted that the Tribunal does not have an inherent jurisdiction. Section 41 5 of the Act states that the Tribunal is a superior court of record that is addition to the powers and jurisdiction conferred on it by the Act, has the inherent jurisdiction of a court of that status. The jurisdiction of the Tribunal to hear and determine a complaint must be distinguished from the issue as to whether the facts alleged fall within a statutory ground of complaint. In this matter the Complaint is premised in discrimination on the status of disability within sections 3 and 5 of the Act.

7 Whether the nature of that disability falls within the preview of the definition of disability in the Act is a proper issue for the Tribunal to determine. The possibility that the facts alleged may not support the claim does not compromise the jurisdiction of the Tribunal to hear the complaint and make an appropriate determination on the merits. The issue as to whether the Tribunal has jurisdiction to entertain the claim simpliciter must therefore be answered in the affirmative.

Limits on the evidence that can be adduced at the Tribunal

8 The respondent has submitted that the Tribunal reviews the decisions of the Commission and in so doing is restricted in the evidence it can admit to what was considered by the Commission. The Tribunal and the Commission are distinct and separate entities with entirely different functions under the Act 6. The Commission receives complaints, investigates

them and facilitates the resolution of these complaints by the parties through conciliation. Where the parties are unable to resolve their dispute, the complainant can opt to have the Commission refer the complaint to the Tribunal for judicial determination 7

9 The Commission is not a court and is not empowered by the Act to make findings or to determine the legal rights of the parties. The views and or opinions of the Commissions on the facts set out in its Report are not admissible as evidence to prove any issue before the Tribunal. These sentiments are not decisive of the issues before the Tribunal and do not influence or bind the Tribunal in its determination of a complaint. Evidence of anything said or done in the course of conciliation proceedings at the Commission is not admissible in proceedings before the Tribunal 8. At the core of conciliation is that it is carried out in an impartial forum that is not empowered to make findings, rulings and or decisions on the law and or the merits of the issues in dispute. Where issues of law (especially concerning jurisdiction) arise for determination at the conciliation of a complaint at the Commission the best practice would be to refer them to the Tribunal for determination at the earliest possibility.

10 The link between the Commission and the Tribunal is the referral of the complaint under section 39(1) of the Act that was lodged by the complainant under section 30(1) of the Act for determination. The ventilation of the unresolved issues or matters at the Tribunal for adjudication has the caveat of being restricted to those raised in the complaint that were investigated by the Commission 9. The caveat on issues or matters raised to be raised at the Tribunal is not equivalent to a caveat on evidence. The parties are at liberty to adduce, and the Tribunal is empowered to receive, any admissible evidence the parties may wish to proffer to support their respective

contentions on the issues that are before the Tribunal, as they would in similarly constituted courts of law

11 The suggestion that this Tribunal is restricted to hearing only ‘evidence’ that was raised at the Commission is plainly wrong. The Tribunal can admit such evidence as it considers relevant and necessary to determine any complaint that was referred to it by the Commission 10. Neither the Court of Appeal nor the High Court in Director of Personnel Administration v. Equal Opportunity Commission & anor ( the “ DPA case”) held otherwise. The court, in the DPA case, in construing the Act agreed that from the onset of the investigation of a complaint by the Commission, the respondent ought to know and consider the allegations being made against it. For this reason, a complaint must be lodged with the Commission and the issues complained of investigated by the Commission before they could progress to the Tribunal.

12 At the Tribunal the legal process of determining the complaint includes the parties setting out their respective cases, the adducing and testing of evidence of competent witnesses, making findings on the facts in dispute, and interpreting and applying the law to these facts in order to determine the legal rights of the parties. In so doing, principles of law and legally binding precedents emerge that support the Tribunal's rulings, decisions, judgments and or orders. The procedure at the Tribunal is governed by the Equal Opportunity Tribunal Rules (‘EOTR’) and by the CPR and section 50 of the Act provides a limited right to appeal the decisions and orders of the Tribunal 11.

Annexure of supporting documents to the Complaint

13 The Respondent has submitted that Documentary evidence ought to have been annexed to the Complaint. As there is no Rule in the EOTR that expressly provides for this, the provisions of the CPR apply mutatis mutandis 12. CPR 8.6(2) prescribes that the Complaint”

“…must identify or annex a copy of any document which the claimant considers necessary to his case…” [Emphasis added].

It is not fatal to the claim that documents identified in the Complaint are not annexed thereto, if appropriate reference is made in the claim 13. This can be cured in the discovery process 14.

The Striking Out Application

14 The second limb of the application is that the claim is unmaintainable and/or wholly misconceived and the same ought to be struck out as an abuse of process. The principles applicable to a striking out application were considered in UTT v. Ken Julien et al 15. Kokaram J. (as he then was) surmised–

“…A striking out application is a draconian remedy only to be employed in clear and obvious cases where it is possible to demonstrate at an early stage before further management of the claim for trial that the allegations are incapable of being proved or the Claimant is advancing a hopeless case, either accepting the facts as pleaded as proven or as a matter of law. See Caribbean Court Civil Practice 2011, Mc Donald Corporation v Steel [1995] 3 AER 615. Zuckerman on Civil Procedure, A. Zuckerman p 279.

15 At the heart of the Striking Out Application is the interpretation of section 3 of the Act. Attorney...