BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the complaints by Dimitra Georgakopoulos, Zoiro Englezos and Anna Kouvas dated November 28,1995, alleging discrimination in employment on the basis of creed.
B E T W E E N :
Ontario Human Rights Commission
- and -
Dimitra Georgakopoulos, Zoiro Englezos and Anna Kouvas
Complainants
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Master Precision, a division of Atoma International Inc.
Respondent
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INTERIM DECISION
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Adjudicator : Mary Anne McKellar
Date : January 6, 2000
Board File No : BI-0247/8/9-99
Decision No : 00-001
Board of Inquiry (Human Rights Code)
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A P P E A R A N C E S
Ontario Human Rights Commission ) William Holder, Counsel
Dimitra Georgakopoulos, Complainant ) Peter Georgakopoulos
Zoiro Englezos, Complainant )
Anna Kouvas, Complainant )
Master Precision, a division of )
Atoma Inc., Corporate Respondent ) Charles Robertson, Counsel
INTRODUCTION
This decision deals with the Commission’s Notice of Motion seeking to amend the Complaint of Dimitra Georgakopoulos to add the ground of reprisal. The unamended Complaint alleges that the Respondent discriminated against this Complainant and two others in employment by refusing to provide them time off to observe Greek Orthodox Good Friday.
FACTS
The Commission's Notice of Motion specified the following grounds for the motion:
On 27 November 1998, three years after filing her Complaint, Ms. Georgakopoulos was disciplined by Dina Nazzai, Human Resources Manager, for complaining about discrimination, for repeating the word "discrimination", and for asking that Respondent managers receive training for discrimination. The Respondent stated "we have already spent enough time on your [discrimination] issues" and "I will pay you for the day [Greek Orthodox Good Friday], you can go to Magna and have them solve these problems." A disciplinary document was received by Ms. Georgakopoulos which states that further complaints will "result in the continuation of progressive discipline up to and including dismissal".
A copy of the disciplinary document referred to in the above paragraph was attached to the Notice of Motion. No proposed amended pleadings were filed.
The Motion was heard by teleconference on November 30, 1999. It was supported by all the Complainants, although they made no submissions. It was opposed by the Respondent. No witnesses were called. The only evidence relied on by the Commission was the disciplinary document dated November 27, 1998. It refers to several incidents in addition to the one relied on by the Commission in its Notice of Motion. The complete text of the disciplinary document relating to the Notice of Motion reads as follows. The text in square brackets appears in the Notice of Motion:
On November 26, 1998, in the employee meeting the subject about Supervisory Development Training was being discussed. You then put up your hand to make some comments. Your comments were as follows, "Does anyone at Magna teach supervisors about discrimination, Magna training does not do anything because discrimination happens all the time. People are too afraid to speak up and tell you that." You proceeded to repeat the word discrimination and favouritism while Peter and myself were trying to speak to you . Peter then responded that "he did not want to get into it, "[sic] we have already spent enough time on your issues, now is not the time to discuss them". You proceeded to say "I am not free to speak." Peter responded to you "Toula I will pay you for the day, you can go to Magna and have them solve these problems."
ANALYSIS
The Respondent did not submit that it would be prejudiced should I allow the Commission to amend the Complaint to add the ground of reprisal. Indeed, any such submission would have had to have been supported by evidence of actual prejudice. Instead, the Respondent objected on the grounds that the Commission's motion materials did not disclose a prima facie case. This argument, albeit interesting, is misplaced in this case.
The prima facie case test is one that is applicable to pleadings: assuming that all the allegations set out in the pleadings can be proven, do they reveal a prima facie case for the Board's granting remedial relief? The problem here, of course, is that the Commission did not file proposed amended pleadings. Rather it filed evidence that might support amended pleadings alleging facts that could constitute reprisal by linking the incidents on November 26 and the contents of the disciplinary document of the following day to the original Complaint. In the absence of such pleadings, the Board is effectively being asked to interpret the disciplinary document and assess its cogency, without having been apprised specifically of the allegation that the Commission claims it supports. The fact that the Commission in its Notice of Motion found it necessary to insert the text appearing in square brackets indicates the extent to which this motion as presented involves an interpretive exercise. The Respondent is also in a difficult situation, as demonstrated by the submissions its counsel felt compelled to make with respect to those aspects of the disciplinary document not specifically referred to in the Commission’s motion materials, just in case they might be relied on later as constituting reprisal.
DECISION
In view of the foregoing, I am declining to allow the motion at this time.
ORDER
The Commission is ordered to serve and file proposed amended pleadings that contain its specific allegations respecting reprisal. Such pleadings are to be served and filed by January 24, 2000. Should the Respondent oppose the proposed amendments on any grounds, including failure to state a prima facie case, it is to advise the other parties and the Board in writing of its position by January 31, 2000. If necessary, a further teleconference will be convened to deal with this matter. Should the Respondent fail to advise of its position by January 31, 2000, it will be deemed to have consented to the motion to amend the pleadings.
Dated at Toronto, this 6th January, 2000.
“Mary Anne McKellar”