Generoux v. Wal-Mart Canada, 2009 HRTO 1157

Human Rights Tribunal of Ontario

Between:

Darlene Generoux Applicant

-and-

Wal-Mart Canada Corp. 3063 Respondents

Interim Decision

Adjudicator: Ena Chadha Date: July 28, 2009 Citation: 2009 HRTO 1157 Indexed as: Generoux v. Wal-Mart Canada

1The applicant filed an Application with the Tribunal pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of “record of offences”.

2In the Application narrative and the accompanying documentation, the applicant alleges that the respondent denied her an annual profit sharing allotment because of her absences related to illness and surgery. After receipt and review of the Application, the Tribunal issued a Notice of Intent to Dismiss on May 20, 2009. This letter notified the applicant that it appeared the Application may be outside the Tribunal’s jurisdiction because the Application did not indicate how the alleged circumstances came within the ground of “record of offences” as covered by the Code.

3In response to the Notice of Intent to Dismiss, counsel for the applicant submits that while the Application alleges “record of offences” as the ground of discrimination, it is clear that the applicant’s concerns regarding the alleged treatment by the respondent relate to discrimination on the basis of "disability". Counsel for the applicant points out that in completing Form 1A, the applicant answered questions that relate to employment discrimination on the ground of “disability” and omitted answering any questions regarding the ground of “record of offences”. Counsel for the applicant submits that the Application is within the Tribunal’s jurisdiction and the applicant’s technical, inadvertent error in checking off the wrong ground does not remove the substance of the complaint from the Tribunal’s jurisdiction.

4At the conclusion of these submissions, counsel for the applicant requests that the applicant be permitted to either: (i) re-file her Application or (ii) amend her Application to include the ground of “disability” and increase the financial remedies stated in question 10 of the Application.

5Based on the applicant’s submissions, I am satisfied that it is plain and obvious from the face of the Application that the applicant’s allegations relate to the ground of “disability” and that there was an error in citing the ground of “record of offences”. Accordingly, the Application is amended to reflect the ground of “disability” and delete the ground of “record of offences”. The Registrar is directed to serve the Application and a copy of this Interim Decision on the respondent. Should the applicant wish to amend the Application to seek additional remedies, the applicant is required to comply with the Tribunal’s Rules of Procedure with respect to requesting an order during proceedings.

6I am not seized of this matter.