Ontario Human Rights Commission v. Kimberley-Clark Inc., 2005 HRTO 45

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Anne Toneguzzo

Complainant

-and-

Kimberley-Clark Inc.

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: November 3, 2005

Citation: 2005 HRTO 45

Human Rights Tribunal of Ontario

400 University Avenue, 7^th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946

TTY (416) 314-2379 / 1-800-424-1168

E-mail hrto.registrar@jus.gov.on.ca

Website www.hrto.ca

A p p e a r a n c e s

Ontario Human Rights Commission ) Amyn Hadibhai, Counsel

Anne Toneguzzo, Complainant ) Joseph Toneguzzo, Representative

Kimberly-Clark Inc., Corporate Respondent ) Richard J. Nixon and Wanda Shreve,

) Counsel

Manulife Financial ) Giulia Ahmadi, Counsel

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging an infringement of sections 5(1), 5(2), 8 and 9. The Complaint was referred to the Human Rights Tribunal of Ontario (“the Tribunal”) by letter from the Commission dated February 9, 2004.

2The Complaint, which is undated, was served on the Respondent on or about August 18, 2001. It alleges that the Respondent discriminated against the Complainant in relation to her employment on the basis of disability. It also alleges that the Respondent engaged in reprisal contrary to Section 8 of the Code.

3The Respondents brought a Motion raising several preliminary objections to the pleadings filed by the Commission and the Complainant. The Motion sought the following Orders from the Tribunal:

1. An Order striking paragraphs in the Statements of Facts, Issues and Remedy (the “Statement” or “Statements”) filed by the Ontario Human Rights Commission (the “Commission”) and Anne Toneguzzo (the “Complainant”) that contain allegations relating to events that occurred after March 1, 2001 (the “Post-March 1, 2001 Allegations”), the date relevant to Complaint No. SHEY-4UNRRL (the “Complaint”).

2. An Order striking paragraphs in the Statements of the Commission and Complainant that contain allegations not raised in the Complaint (the “New Pre-March 1, 2001 Allegations”).

3. An Order striking paragraphs in the Statements of the Commission and Complainant that contain allegations relating to the alleged acts and/or omissions of Manulife Financial (“Manulife”) (the “Manulife Allegations”).

4. An Order striking paragraphs in the Statement of the Complainant that contain allegations which contradict, or are in addition to, allegations contained in the Statement of the Commission (the “Contradictory and Additional Allegations”).

4The Commission and the Complainant opposed the Motion brought by the Respondent.

5The Tribunal convened a hearing on September 22, 2005 to deal with the Motion brought by the Respondent. This decision deals with the Motion.

ISSUE RELATED TO MANULIFE FINANCIAL

6Manulife Financial (“Manulife”) is the insurer (or administrator) of the Respondent’s short and long term disability plans. The pleadings of both the Commission and the Complainant make reference to Manulife, its dealings with the Complainant, certain assessments it made relating to the Complainant’s illnesses and disabilities, and communications it had with the Respondent.

7During the pre-hearing conference call set to deal with the scheduling of this Motion, the parties raised the issue of providing Manulife with formal notice of the proceedings. Indeed, the Respondent took the position that if the Tribunal rejected the request to strike out those portions of the pleadings referring to Manulife, it (Manulife) should be made a respondent party to the proceedings before the Tribunal.

8In its decision dated June 2, 2005 the Tribunal directed that Manulife be given notice of this Motion and be provided the opportunity to file submissions, both in relation to Issue 3, as well as whether, and to what extent, it should have standing in the hearing on the merits of the Complaint. Manulife did not file submissions, but did attend at the hearing of the Motion on September 22, 2005. Counsel for Manulife indicated at the outset that her client did not seek to intervene, but depending upon the parties’ positions, she reserved the right to make submissions.

9In the course of the hearing the parties were able to articulate and refine their positions in relation to Manulife such that it became unnecessary for them to argue Issue 3 of the Motion and for the Tribunal to make a ruling in that regard.

10The Commission and the Complainant confirmed on the record, that neither sought to have the Tribunal make any findings that Manulife had engaged in any wrongdoing or had violated the Code. Further, neither sought any remedies as against Manulife.

11Finally, both the Commission and the Complainant confirmed that except insofar as the Respondent may have relied upon or had adopted any assessment or determination made by Manulife, it was not bound to answer for any action of Manulife.

12As a result, it is not necessary for the Tribunal to rule upon Issue 3 raised in the Motion. The Respondent withdrew its request to have Manulife added as a party and Manulife, based on the parties’ representations, does not seek to intervene.

13The Tribunal notes the representation of the parties, on the record, as set out above.

BACKGROUND

14Given the issues raised in the Motion, it is helpful to reproduce, in full, “Appendix A” to the Complaint, which contains the summary of the factual allegations of the Complaint:

APPENDIX "A"

1. I began working for Kimberly-Clark ("KC") in November of 1976. For the majority of that period of time, I have worked as a Treasury Accountant in the Canadian Office.

2. Shortly after joining KC, I was diagnosed with ulcerative colitis. This is a disease that causes me constant weakness, fatigue and pain. The challenges of dealing with these symptoms also causes depression which I manage through therapy and drug treatment. The disease also flares up from time to time, completely disabling my ability to work. On many occasions, I have had to be rushed to the hospital for aggressive drug treatments and blood transfusions, as necessary, to manage some of the more severe attacks associated with my disease.

3. Until recently, KC fully accommodated my disability by allowing me to work on a full-time basis and to, when necessary, deal with my medical condition by way of absence. From time to time, I was required to spend a month or more in the hospital and subsequently at home. There were also periods of time when some of the less severe attacks resulted in simply an absence at home for a week or two.

4. At all times, my supervisors were kept involved of my medical status and always made the appropriate accommodations for me, until recently. At all times until recently, as described below, I was retained as a full-time employee.

5. Starting in or about 1998, my condition began to worsen. In particular, the chronic pain, fatigue and resulting depression made it difficult for me to maintain working the hours that I had been working. In May, 2000, my doctors recommended that I reduce my work load to a number of hours that was manageable without suffering undue fatigue and depression relating to my disease. At that time, my doctors recommended that I restrict my time at work to a maximum of six (6) hours per day.

6. In June, 2000, I advised my new Supervisor of my need to work less[sic] hours and provided full documentation to KC from my doctors. As established by my doctors at that time, I was able to remain at work a maximum of six (6) hours per day. However, both my new Supervisor and the new Human Resources staff began to complain to me that because I was working less than full-time hours, I was setting a "dangerous precedent" for KC.

7. Since the reduced hours were marginally manageable from a health perspective my doctors recommended, later in 2000, that I maintain these reduced hours on a permanent basis. At that time, I requested KC to accommodate the situation by reducing my pay in accordance with the hours that I could work, without causing further harm to my health. KC requested that I process this request through their insurer, Manulife. At that time I was lead to believe that the purpose of this request to Manulife was as a partial long-term disability claim, to pay me for the hours I could not work.

8. I complied with this request and while awaiting the response from the insurer, I was requested by my doctors to undergo a number of tests to investigate the possibility of cancer relating to my chronic condition and other forms of cancer that were suspected by my doctors. I immediately informed KC of this as I would be required to take some time off work because the tests were difficult to schedule during non-working hours.

9. These tests were scheduled in the time frame from November, 2000 through February, 2001 and were difficult to endure both physically and emotionally. There was considerable reluctance expressed by my Supervisor and Human Resources of KC to provide me with the time off required to complete these tests. I was informed that "I had too many appointments".

10. While undergoing these tests, I was advised that KC's insurers had concluded that my chronic condition should not restrict the hours that I could work and KC then advised me in writing to return immediately to full-time hours or accept a part-time position. While the part-time position would provide me with hours that were manageable from a health perspective, I was advised that KC would eliminate medical benefits and insurance benefits which were critical to me in view of my handicap and the potential medical concerns regarding a diagnosis of cancer, of which KC was fully informed.

11. On March 1, 2001, I was assigned to a part-time position by KC, my hourly rate of pay was reduced by about 10% and my benefits were eliminated. This was done without my consent.

12. At that time my medical condition would allow me to be at work for a maximum of six (6) hours per day. This would entitle me to a continuation of benefits as if I were a full-time employee. However, KC would not permit me to continue being at work for six (6) hours per day or continue with benefits available to a full time employee. I was prepared to be paid only on the basis of the hours that I could work, without causing further harm to my health, but KC will not permit me to do so.

13. I believe that my right to be free from harassment in the workplace because of handicap has been infringed in contravention of Sections 5(1), 5(2) and Section 9 of the Ontario Human Rights Code.

14. Furthermore, I believe that my right to be free from reprisal from my employer after seeking accommodation has been infringed in contravention of Section 8 and Section 9 of the Ontario Human Rights Code.

15The Complaint itself is comprised of the standard complaint form used by the Commission, along with an attached “Appendix A” (reproduced above). The complaint form was signed but not dated. In the section immediately below the Complainant’s name and address, the following pre-printed words appear:

The complainant alleges that on, or about the ____________________,

The respondent contravened a section of the Human Rights Code, 1990.

16In the instant Complaint, the date “1 Mar 2001” was inserted.

17Subsequent to the filing and service of the Complaint, the Commission followed its normal procedures in handling a complaint. This included a Section 34 Analysis and determination, an investigation, the preparation of a Section 36 Case Analysis Report, providing the parties an opportunity to comment on that report and submitting the Complaint and Case Analysis to the Commission for a determination under Section 36 as to whether to refer the matter to the Tribunal.

18Part of the basis put forward by the Respondent for seeking the Orders in this Motion is the manner in which the Commission handled the Complaint and dealt with the Respondent in the period prior to the referral to the Tribunal. For this reason, the Tribunal will set out briefly the facts relied upon by the Respondent.

19The Respondent filed affidavits setting out certain factual matters in relation to the events leading up to the referral of the Complaint to the Tribunal. The affidavits were not filed or served within the time limits established by the Tribunal’s Rules for the filing of material to be used on a Motion. Neither the Commission nor the Complainant objected to the late filing.

20Neither the Commission nor the Complainant filed affidavit material. The Tribunal notes that the Tribunal’s Rules do not require parties to a motion to file affidavits. The Complainant, in the body of her Response to the Motion, did address certain factual allegations raised by the Respondent.

21There does not appear to be significant disputes in the facts alleged in the affidavits filed by the Respondent and the Response filed by the Complainant. Where there are disputes which are material to the issues in this Motion, I have set out the competing assertions. However, as this is a Motion to strike pleadings, any factual dispute would generally lead the Tribunal to favour the hearing of evidence to determine the dispute.

22The affidavit of Wanda Shreve dated September 19, 2005 alleges that on October 19, 2001, the Respondent submitted a request pursuant to Section 34 asking that the Commission exercise its discretion and decide not to deal with the Complaint on the grounds that the Complaint was frivolous, vexatious and/or made in bad faith, and was based upon facts that occurred more than six months before the Complaint was filed.

23The Commission advised the parties that it was preparing a Section 34 Case Analysis, and in so doing, would have reference to the Complaint, the Respondent’s request under Section 34 and the Complainant’s rebuttal to that request. The Respondent wrote the Commission asking for an opportunity to receive a copy of the Complainant’s rebuttal and to make submissions on the rebuttal.

24The Commission advised the Respondent that it was not the policy of the Commission to provide copies of rebuttals filed by complainants, nor to permit respondents to file responses to rebuttals.

25The mediation officer assigned to the matter prepared a Section 34 Case Analysis recommending that the Commission decline to exercise its jurisdiction to reject the Complaint at that early stage. In accordance with its normal practice and policy, the Commission provided the Respondent a copy of the Case Analysis and an opportunity to comment prior to a determination being made by the Commission.

26The affidavit of Ms. Shreve then sets out allegations that the Respondent made several unsuccessful attempts to obtain a copy of the Complainant’s rebuttal to the Section 34 request.

27On July 22, 2002, the Commission decided that it would not decline to deal with the Complaint pursuant to Section 34, and the Complaint was being referred to Investigation pursuant to the Code.

28In September 2002, the Commission commenced its investigation of the Complaint. In October 2002, the Commission interviewed three managerial employees of the Respondent. In the course of those interviews, the Commission investigator asked certain questions related to events that occurred subsequent to March 1, 2001. The affidavit of Ms. Shreve states that the Respondent’s managerial employees refused to answer those question, apparently taking the position that such matters were beyond the scope of the Complaint, that the Respondent had no notice or particulars of such matters and the Commission lacked jurisdiction to deal with those matters.

29In her Response to this Motion, the Complainant alleges that the investigator’s notes indicate, contrary to the assertions of the Respondent, that the Respondent’s managerial employees did respond to certain questions relating to post-March 1, 2001 matters. The Response goes on to state that the witness statements ultimately signed by these individuals had the post-March 1, 2001 information and responses removed.

30On June 16, 2003, the Respondent filed a response to the Complaint. On July 20, 2003, the Complainant filed a rebuttal to the Respondent’s reply. Ms. Shreve’s affidavit states that the rebuttal contained allegations regarding events that occurred after March 1, 2001 as well as events not raised in the original Complaint.

31The Respondent states it was not permitted to respond to the Complainant’s rebuttal.

32On October 3, 2003, the Commission investigator released her report and recommendations to the parties. In the investigator’s view, there was insufficient evidence to support a finding of reprisal against the Complainant by the Respondent. The investigator however recommended that the other aspects of the Complaint be referred to the Tribunal pursuant to Section 36.

33As in the normal course, the Respondent was provided an opportunity to file submissions with respect to the investigator’s Section 36 Case Analysis Report.

34On February 6, 2004, the Commission advised the parties that it had decided to refer the matter to the Tribunal for a hearing on the merits. This referral included the allegation of reprisal.

35In accordance with the Tribunal’s Rules, on June 11, 2004, the Commission provided disclosure to the Respondent.

36Paragraph 34 of Ms. Shreve’s affidavit states:

Contained in the Commission’s disclosure package were documents never previously produced to Kimberly-Clark by the Complainant, her counsel, the Commission or the investigator, including:

(a) the Complainant’s rebuttal to the Section 34 Request;

(b) the Complainant’s rebuttal to the Response to the Complaint;

(c) the Complainant’s Response to the Section 36 Case Analysis Report;

(d) new medical documentation, including:

(i) Dr. Boivin’s note dated October 22, 2000 regarding:

A. the nature of the Complainant’s partial disability; and

B. the prognosis regarding modified work hours;

(ii) Manulife’s letter dated November 12, 2000 to Dr. Iwanchyshyn regarding Dr. Iwanchyshyn’s meeting with Manulife and the Complainant on November 16, 2000;

(iii) Dr. Boivin’s note dated January 9, 2001 regarding:

A. the nature of the Complainant’s partial disability; and

B. the prognosis regarding modified work hours;

(iv) Dr. Iwanchyshyn’s note dated January 23, 2001 summarizing the effect of the Complainant’s “course of depressive illness” on her hours of work; and

(v) Dr. Kortan’s note dated January 29, 2001:

A. confirming the Complainant’s diagnosis of ulcerative colitis in or about 1976;

B. summarizing the Complainant’s treatment of ulcerative colitis over the past 25 years until January 29, 2001;

C. confirming the Complainant’s history of depression and summarizing the management of such depression; and

D. supporting Dr. Boivin’s recommendation that the Complainant work a 6 hour day.

37At paragraph 7 of her Response to this Motion, the Complainant states:

In Para. 67 of the Respondent’s Motion, the Respondent claims that they obtained documents that were never previously received prior to June 11, 2004 when they received the Commission’s disclosure package. Included in the listing is Dr. Boivin’s note dated January 9, 2001, Dr. Iwanchyshyn’s note dated January 23, 2001 and Dr. Kortan’s note dated January 29, 2001. These Doctors notes were provided to Mr. Richard Nixon by Ian J. Roland (the Complainants Legal Counsel), in a successful Fax Transmittal dated March 12, 2001. This Fax Transmittal included a letter dated March 12, 2001 from Ian J. Roland to Richard Nixon. The letter instructed that “these medical reports are to be kept confidential by your client and only viewed by employees of your client who are required to do so in order to properly accommodate her in her employment with Kimberly-Clark.” The Fax Transmittal and letter are contained in Attachment 3. This documentation provides clear proof that the Respondent was provided with these specific letters by March 12, 2001….

38The Complainant goes on to allege that many of medical reports, and much of the medical information that the Respondent claims it was unaware of, was in fact provided to the Respondent in a timely manner or was otherwise made known to the Respondent through communications with the Complainant and/or Manulife.

39The Respondent underwent a significant restructuring of its Mississauga office that resulted in the elimination of many positions. On June 3, 2004, twenty-one employees, including the Complainant and two of the managerial employees who had given statements during the investigation, were given written notice of termination of employment.

40On October 18, 2004, the Commission and Complainant filed separate pleadings in accordance with the Tribunal’s Rules. On November 25, 2004, the Respondent filed its pleadings.

41The majority of the paragraphs in the pleadings of the Commission and the Complainant which are challenged by the Respondent, plead facts related to communications and the exchange of documents (mostly medical reports) as between the Complainant and the Respondent or the Complainant and Manulife.

ISSUES

42Is the Respondent entitled to the Orders requested in its Motion, namely:

1. An Order striking paragraphs in the pleadings filed by the Commission and Complainant that contain allegations relating to events that occurred after March 1, 2001.

2. An Order striking paragraphs in the pleadings of the Commission and Complainant that contain allegations not raised in the Complaint that occurred prior to March 1, 2001.

3. An Order striking paragraphs in the pleadings of the Complainant that contain allegations which contradict, or are in addition to, allegations contained in the pleadings of the Commission.

POSITION OF THE PARTIES

43The position of the Respondent in relation to Issues 1 and 2 is essentially the same. The Respondent argues that allegations and statements of fact that were not set out in the original Complaint are beyond the jurisdiction of the Tribunal, as they do not form part of “the subject matter of the complaint” within the meaning of Sections 36 and 39 of the Code. In the alternative, the Respondent argues that in light of the Commission’s handling of the Complaint, its dealings with the Respondent, and the delay between when certain events occurred and when the pleadings were filed, the impugned paragraphs in the pleadings should be struck.

44In relation to Issue 3, the Respondent takes the position that it is improper and unfair that the pleadings of the Complainant contain what they consider “contradictory allegations” or “additional allegations”, that is, assertions that are different, contradict or are in addition to those filed by the Commission.

45In response, the Commission and the Complainant argue that the “subject matter of the complaint” and the Tribunal’s jurisdiction to deal with the matter is not circumscribed by the precise wording of the Complaint. The Commission says the Respondent misapprehends the purpose of a complaint and ignores the importance of the investigation processes contemplated by the Code. The Commission rejects that the Tribunal has any supervisory oversight over the actions of the Commission, and argues that while the Tribunal may address allegations of abuse of process, the test is not met in this case. In relation to Issue 3, the Commission argues that by virtue of the statute, the Complainant and the Commission are separate parties and as a result, the Respondent’s Motion cannot succeed.

DECISION AND ANALYSIS

46After careful consideration of the positions and submissions of the parties, for the reasons below, the Tribunal declines to grant the Motion brought by the Respondent to strike certain pleadings filed by the Commission and the Complainant.

47In determining a preliminary Motion or application brought by a party seeking to strike pleadings, it is important to do so in the context of certain fundamental and well-established principles of human rights law. In the case of Re Ontario Human Rights Commission et al and Simpsons-Sears Ltd. (O’Malley) 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at 546-547, the Court said, in an oft- quoted passage:

…It is not, in my view, a sound approach to say that according to established rules of construction no broader meaning can be given to the Code than the narrowest interpretation of the words employed. The accepted rules of construction are flexible enough to enable the Court to recognize in the construction of a human rights code the special nature and purpose of the enactment (see Lamer J. in Insurance Corp. of B.C. v. Heerspink 1982 CanLII 27 (SCC), [1982] 2 S.C.R. 145, at pp. 157-58), and to give to it an interpretation which will advance its broad purposes. Legislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary - and it is for the courts to seek out its purpose and give it effect…

48In Action Travail des Femmes v. Canadian National Railway Co., [1987] 1.S.C.R. 1114 at 1134, the Court reaffirmed a broad and purposive approach to the interpretation and application of the Code:

Human Rights legislation is intended to give rise, among other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation, the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. (p.1134)

49More recently, the Honourable Peter Cory, sitting as the chair of a panel of this Tribunal, dealing with a Motion to strike a Complaint for disclosing no cause of action, made the following comments:

…Those taking steps pursuant to the Code are often of limited means and members of the most vulnerable groups in our society. It is neither necessary nor appropriate to subject the procedure taken under the Code to the same scrutiny as that applied to pleadings exchanged in complex civil actions. Rather, complainants should simply be required to meet standards of basic fairness... (Emphasis added)

Braithwaite v. Ontario (Attorney General) (No.1) (2005), CHRR Doc. 05-470, 2005 HRTO 31 at para. 14

50In the instant case, the Respondent does not seek to have particular paragraphs of the pleadings struck because they do not disclose a violation of the Code. Rather, the Respondent argues that by filing pleading as they have, the Commission and the Complainant are attempting to expand the proper scope of the case, to make the case a “moving target”, and to prevent the Respondent from being able to know the precise case they are required to meet. The Respondent referred the Tribunal to a number of authorities which highlight the importance of having the boundaries or “four corners” of a dispute well defined. (Rodaro v. Royal Bank of Canada (2002) 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A); 460635 Ontario Limited v. 1002953 Ontario Limited, (1999) 1999 CanLII 789 (ON CA), 127 O.A.C. 48 (C.A.); Entrop v. Imperial Oil (2000), 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18 (C.A.).

51In the 460635 Ontario Limited case (supra), the Respondent quoted the following passage from paragraph 9:

…the parties to a legal suit are entitled to have a resolution of their differences on the basis of the issues joined in the pleadings. A finding of liability and resulting damages against a defendant on a basis that was not pleaded in the statement of claim cannot stand. It deprives the defendant of the opportunity to address that issue in the evidence at trial. [Emphasis added by Respondent]

52The Respondent suggests that a complaint in a proceeding under the Code serves a similar purpose to pleadings in a civil action.

53In the Tribunal’s view, the position of the Respondent cannot prevail. First, as noted in the Braithwaite case, pleadings in a human rights proceeding ought not be scrutinized in the same manner as pleadings in civil proceedings.

54Second, and perhaps most importantly, the Tribunal is not prepared to accept, and there is no support in the case law for the proposition that the “subject matter of the complaint” is restricted to the specific factual allegations set out in the original complaint form, or that the complaint form itself serves a similar purpose to that of pleadings in a civil action.

55To the contrary, jurisprudence before this Tribunal and the Courts has established that a human rights complaint is not in the nature of a criminal indictment. Rather, it is a notice to a Respondent of the commencement of an administrative proceeding. (See: Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd. Inq.); Smith v. Mardana Ltd. (No. 2) (2002), 2002 CanLII 46512 (ON HRT), 44 C.H.R.R. D/142 at para. 26 (Ont. Bd. Inq.), (varied on other grounds: (2005), CHRR Doc. 05-434 (Ont. Div. Ct.)).

56Further, the wording of Section 39 of the Code makes clear that the Tribunal has the broad jurisdiction to inquire into all aspects of a matter referred to it, including: “to determine whether a right of the complainant under this Act has been infringed; to determine who infringed the right and to decide upon an appropriate order under section 41.” The Tribunal has the power to add parties, either at the request of a party or on its own motion. In addition, the Tribunal’s Rules of Practice (“Rules”) establish procedures for the exchange of pleadings (in which parties are required to set out the issues in dispute), the identification and addition of parties and prehearing procedures which, inter alia, allow for the identification of any additional issues.

57Thus, both the Code and the Tribunal’s Rules make clear that the defining of the case and scope of the inquiry before the Tribunal occurs at the point the complaint is referred to the Tribunal and during the period in which the Tribunal’s pre-hearing processes are engaged, not when a complaint is drafted.

58This approach is also consistant with the scheme of the Code, including having the Commission investigate complaints and providing the Commission broad investigatory powers. That process and those broad powers would be senseless if the legislature intended that the Tribunal only had the jurisdiction to inquire into the specific factual allegations set out in the original drafted complaint.

59In the Tribunal’s view, this scheme and the process embodied in the Code is established precisely because of the unique character of human rights complaints. Complainants will often have difficulty, either because of their lack of resources or because of the nature of many forms of discrimination, to fully plead all factual allegations at an early stage. As was noted in Basi v. Canadian National Railway Co. (No.1) (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 38481, “Discrimination is not a practice which one would expect to see displayed overtly.” See also: Canada (Attorney General) v. Grover (No. 1)(1992), 1992 CanLII 629 (CHRT), 18 C.H.R.R. D/1 (C.H.R.T.), upheld at (1994), 1994 CanLII 18487 (FC), 24 C.H.R.R. D/390 (F.C.T.D.).

60This is not to say that the complaint form filed with the Commission is completely irrelevant in determining the “subject matter of the complaint” within the meaning of Sections 36 and 39 of the Code. The Tribunal also accepts the principle that even within a more liberal and purposive approach to the interpretation of the Code and the determination of human rights complaints, parties are required to file pleadings which set out the factual allegations upon which they rely and to do so in a manner which permits the other side to know the case to be met. As the Respondent pointed out, the Ontario Court of Appeal in Entrop (supra), held that a hearing of a complaint under the Code should not become a “moving target” for a respondent.

61However, care must be taken in reading the Court of Appeal’s decision in Entrop. It stands as much for the principle that it is entirely proper for a human rights tribunal to take a liberal approach to questions of amending complaints, and taking a broad view of what is “the subject matter of the complaint”, as it does for signalling that such a discretion is not without its limits. The Court in Entrop was dealing with a very different fact situation than in the instant case. The concern was that the Board had expanded the inquiry to include a review of the drug testing policy of Imperial Oil where, a challenge to that policy did not form part of the original complaint, there was no factual foundation for the inquiry (since the complainant was allegedly discriminated against on the basis of his prior alcoholism) and the expansion of the inquiry by the Board occurred nearly two years after the commencement of the hearing on the merits.

62The Court of Appeal in fact accepted that in appropriate circumstances it was proper for a Board to broaden the scope of an inquiry beyond the original complaint.

63Ultimately, each case will turn on an assessment of what constitutes the real issue(s) in dispute between the parties and an assessment of whether the pleadings filed in fact seek to expand the nature of that dispute. The determination of that question will turn on, in part, a consideration of the original complaint.

64Where the Commission or the Complainant seek to expand the dispute, the Tribunal may nonetheless be asked to permit an amendment to the original complaint.

65This issue was considered in a decision of Vice-Chair McKellar in Odell v. Toronto Transit Commission (No.1) (2001), 2001 CanLII 26210 (ON HRT), 39 C.H.R.R. D/200 (Ont. Bd. Inq.). That case involved a group of complaints brought by a number of individuals against the Toronto Transit Commission (“TTC”) alleging a breach of the Code on the basis of disability. The essence of the complaints was whether it was a violation of the Code for the TTC to implement an interview process and registration fee for disabled persons who applied to use the “Wheel-Trans” service, a transit service for persons with disabilities. A question arose as to whether pleadings filed by one of the Complainants should be struck out.

66The challenged pleadings alleged inadequacies in the Wheel-Trans service as well as general inaccessibility of the conventional transit system operated by the TTC. The TTC argued that these pleadings were beyond the scope of the original complaint.

67At paragraph 11, the Board said:

The Board finds that the allegations in Odell's pleadings relating to the inadequacies of the Wheel-Trans service and the inaccessibility of the TTC's conventional service are beyond the scope of her complaint. In determining whether to strike those pleadings or permit them to stand, the Board must address the following questions:

• Do the allegations form part of the continuum of facts of the complaint?

• Would an amendment to the complaint to include these allegations be appropriate in the circumstances?

• Do the allegations provide a useful context for considering the legal issues in the case?

68In considering the first question, in Odell (No.1), supra at para. 12 the Board referred to a passage in one of the Board of Inquiry decisions in Entrop, which is particularly pertinent in the instant case:

The Board in Entrop v. Imperial Oil Limited (No.3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 was dealing with a complaint filed after an employee who disclosed previous substance abuse was transferred from his position. Subsequent to the filing of the complaint, the employee was reinstated subject to conditions and the Board held that the complaint need not be formally amended to permit allegations to be made and evidence to be led with respect to the propriety of that reinstatement process, because it formed part of the continuum of facts of the original case. The critical passage in the Board's reasoning appears at paragraph 4 [p. D/187]:

… There will always be some delay between the filing of a complaint and the hearing of the matter before a board of inquiry. Where the parties to the case remain in a continuing relationship, events will continue to unfold. The questions concerning the process of reinstatement fall squarely within the original ground of employment discrimination alleged by the complainant. The information sought to be added is in the nature of a continuum of the matters asserted in the first instance. The issue of reinstatement is not severable from the issue of job loss. The evidence simply relates to a single issue over a continuing time. There is no need to obtain an amendment to the complaint on these issues.

69In the instant case, the Tribunal has no difficulty in finding all of the impugned material facts, whether pre- or post-March 1, 2001, are part of the “continuum of events” of this Complaint. The post-March 1, 2001 pleadings are precisely of the sort identified by the Board in Entrop likewise, the pre-March 1, 2001 pleadings “relate to a single issue over a continuing time.” As noted above, the vast majority of the impugned paragraphs simply detail when and to whom the Complainant provided medical notes and information, or had discussions related to her chronic health problems and on-going efforts to seek accommodation.

70The real issue in dispute between the parties or the ”essence of the complaint” is the alleged failure of the Respondent to accommodate Ms. Toneguzzo, a long service employee who suffered from a variety of chronic health problems. The complaint alleges that up to some time in 2000, the Respondent appropriately accommodated the Complainant and afterwards did not. The Complaint also alleges that the Respondent engaged in reprisal against the Complainant. A plain and fair reading of the Complaint discloses this to be the essence of the complaint. None of the pleadings seek to expand the scope. Indeed, in the Tribunal’s view, the pleadings filed by the Commission and the Complainant do exactly what pleadings filed pursuant to its Rules are supposed to do – set out in detail and with sufficient particularity the material facts upon which those parties intend to rely.

71Nor is the Tribunal prepared to find that there was any delay in asserting material facts such as to cause the Tribunal to exercise its discretion to strike out the pleadings as requested. As noted above, the scheme of the Code establishes a procedure which includes the filing of a complaint at an early stage, the investigation by the Commission and once a matter is referred to the Tribunal, the filing of pleadings. There is nothing to suggest that either the Commission or the Complainant engaged in an abuse of that process. Nor has the Respondent presented any evidence of real, as opposed to presumed prejudice.

72The Respondent chose to take an extremely narrow approach to defining the “subject matter of the complaint”. It chose to view March 1, 2001 as the “date relevant to the complaint” (notwithstanding that the complaint form indicated “on or about March 1, 2001”). It chose to consider the Complainant’s illness of ulcerative colitis as the single disability, and objected to any mention of other illnesses, symptoms or collateral effects. It chose to take a position that any reference to medical reports or information not specifically mentioned in the original complaint form constituted improper pleadings. If the evidence establishes that the Respondent was in fact unaware of a particular illness, or that the Complainant had never provided certain medical information which recommended the particular accommodation which the Complainant alleges the Respondent ought to have provided, then clearly those facts will be relevant to the Tribunal’s consideration of this Complaint. But the narrow and technical approach the Respondent urges the Tribunal to accept is not supported by scheme of the Code, its broad purpose and objectives, nor the jurisprudence.

73Before concluding, I wish to address two outstanding issues. The first relates to the Respondent’s argument that the impugned pleadings should be struck because its natural justice rights were breached by the Commission in the period leading up to the referral to the Tribunal. It argued that these alleged breaches prevented it from making full and proper submissions to the Commission at the Section 34 and 36 stages of the processes established by the Code.

74It is well established that the Tribunal does not have supervisory oversight or jurisdiction in relation to the intake, investigation, Section 34 or Section 36 decision making powers of the Commission. A complaint by a party in this regard lies to the Divisional Court, not the Tribunal. (See for example: Bui v. B & G Foods Inc. (2001), 2001 CanLII 26233 (ON HRT), 41 C.H.R.R. D/191 (Ont. Bd. Inq.); Anonuevo v. General Motors of Canada Ltd. (No. 1) (1996), 1996 CanLII 20105 (ON HRT), 31 C.H.R.R. D/238 (Ont. Bd. Inq.); and Payne v. Ontario (Human Rights Board of Inquiry) (No.2) (2000), CHRR Doc. 00-120 (Ont. Sup. Ct.).

75Second, the Respondent sought an order that the Tribunal strike the pleadings of the Complainant which are contradictory to those of the Commission, or are in addition to those of the Commission.

76Section 39(2) of the Code provides:

(2) The parties to a proceeding before the Tribunal are,

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the Tribunal to have infringed the right;

(e) where the complaint is of alleged conduct constituting harassment under subsection 2 (2) or subsection 5 (2) or of alleged conduct under section 7, any person who, in the opinion of the Tribunal, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.

77The Tribunal finds that there is no basis upon which it could limit the right of a person who is given full party status under the statute, to file his or her own pleadings, only on the basis that they arguably contradict, or are in addition to those of another party, even where that other party may be allied in interest.

78Indeed the Court of Appeal has confirmed the separate status of a complainant in a proceeding before the Tribunal:

It is therefore my conclusion that the majority of the Divisional Court did err in failing to recognize the independent status of the complainant as a party before the Board of Inquiry.

McKenzie Forest Products Inc. v. Tilberg (2000), 2000 CanLII 5702 (ON CA), 37 C.H.R.R. D/316 at para. 32 (Ont. C.A.)

79For all of the reason discussed above, the Motion of the Respondent is dismissed.