Generoux v. Wal-Mart Canada, 2009 HRTO 2014

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darlene Generoux

Applicant

-and-

Wal-Mart Canada Corp. 3063

Respondent

interim DECISION

Adjudicator: Sheri D. Price

Date: November 25, 2009

Citation: 2009 HRTO 2014

Indexed as: Generoux v. Wal-Mart Canada

1This Application, filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), alleges that the respondent discriminated against the applicant on the basis of disability in respect of employment.

2The purpose of this Interim Decision is to determine the applicant’s request to amend her Application by seeking additional remedies and to provide direction regarding the time for the filing of a Response by the respondent.

Background

3This Application originally alleged discrimination in respect of employment on the basis of “record of offences”. In May 2009, the Tribunal issued a Notice of Intent to Dismiss on the basis that it did not appear that there were allegations that the applicant had been discriminated against on the basis of “record of offences” and that the Application might therefore not be within the Tribunal’s jurisdiction.

4The applicant filed written submissions in response to the Notice of Intent to Dismiss seeking to amend her Application by changing the ground upon which her Application is based to “disability” and by increasing the financial remedies sought in respect of the Application.

5In an Interim Decision dated July 28, 2009, 2009 HRTO 1157, the Tribunal granted the applicant’s request to amend her Application to reflect “disability” instead of “record of offences” as the ground upon which her Application is based. The Tribunal acknowledged the applicant’s request to amend the remedies sought in her Application, but directed the applicant to make a Request for an Order during Proceedings in that regard, in accordance with the Tribunal’s Rules of Procedure. In its Interim Decision, the Tribunal also directed that the respondent be served with the Application and the Interim Decision.

6The Tribunal delivered the Application and the Interim Decision to the respondent by courier, under cover of a letter dated July 28, 2009.

7On August 6, 2009, counsel for the respondent wrote to the Tribunal stating that the respondent had received the Application but not the Tribunal’s standard Notice of Application indicating the requirement to file a Response within 35 days of the date of the Notice. Respondent counsel asked the Tribunal to advise as to the date upon which the Response was due. From the file, it does not appear that the Tribunal responded to this request.

8On November 4, 2009, the applicant filed a Request for an Order during Proceedings, seeking to amend the remedies sought in the Application to increase the amount of the financial remedies sought and to add a public interest remedy. The Request was delivered to the respondent by the applicant. The respondent confirms receipt of the Request and does not oppose it. The respondent indicates its position that the Tribunal may decide the matter on its own and without convening a hearing.

Request to Amend Remedies Sought

9Rule 1.7(c) of the Tribunal’s Rules of Procedure provides:

In order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may …allow any filing to be amended.

10In this case, the request to amend the Application is made at a very early stage in the proceeding, prior even to the filing of a Response. I cannot see how granting the Request would prejudice the respondent in any way. Moreover, the respondent does not oppose the Request. Accordingly, the applicant’s Request to amend her Application is granted.

Deadline for Filing a Response to the Application

11The respondent has yet to file a Response in this matter, apparently because it has been waiting for the Tribunal to respond to its request for clarification as to the date upon which the Response was due. In respondent counsel’s August 4, 2009 email to the Tribunal, the respondent expressly acknowledges the usual requirement to file a response within 35 days, although indicates confusion as to exactly when the 35-day time limit begins to run.

12In a November 18, 2009 email to the Tribunal, the applicant requests clear direction from the Tribunal regarding the respondent’s failure to file a Response in this matter and contends that there is no valid expiation for the extraordinary delay in the respondent’s failure to file a Response.

13Rule 8.1 of the Tribunal’s Rules of Procedure (publicly available on the Tribunal’s website, www.hrto.ca) states:

8.1 To respond to an Application under sections 34(1) or 34(5) of the Code, a Respondent must file a complete Response in Form 2 not later than (thirty-five) 35 days after a copy of the Application was sent to the Respondent by the Tribunal.

14The Application was sent to the respondent by courier on July 28, 2009. Accordingly, pursuant to the Tribunal’s Rules, the Response to the Application ought to have been filed by September 1, 2009. Although the Tribunal’s general practice is to send a Notice of Application to the respondent(s) when it delivers the Application, the obligation to respond to the Application derives from the Tribunal’s Rules of Procedure, and not the Notice of Application per se. Apparently, at the time it was served with the Application, the respondent was sufficiently familiar with the Tribunal’s Rules and practices to have been aware that there was a 35-day time limit for responding to Applications. Even if the respondent was unclear as to whether the 35-day time limit began to run on the date that the Application was sent to the respondent or some other date, such as the date the Application was received by the respondent, the better approach would have been for the respondent to file a Response by early September 2009.

15Having said that, the respondent did request clarification from the Tribunal shortly after receiving the Application and apparently did not receive such clarification. Moreover, the applicant was directed in the Interim Decision to file a Request seeking to amend her Application and did not do so until November 2009. In all of the circumstances, the respondent is hereby directed to file its Response to the amended Application within 14 days of receiving this Interim Decision.

16I am not seized of this matter.