Cote v. Bruce Edmeades, 2009 HRTO 617

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dennis Cote

Applicant

-and-

Bruce Edmeades Co., Jay Jackson, Janet Lehman, Sarah Brestovacki and Steve Little

Respondents

interim DECISION

Adjudicator: Judith Hinchman

Date: May 12, 2009

Citation: 2009 HRTO 617

Indexed As: Cote v. Bruce Edmeades

1This in an Application filed January 30, 2009 under section s. 53(5) of Part VI of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the "Code").

2The purpose of this Interim Decision is to address a Request for Order during Proceeding filed by the corporate respondent as well as to provide direction to the personal respondents who have not yet filed Responses to the Application.

3On February 19, 2009, the corporate respondent filed a Request for the following orders:

1. Not permitting the applicant to amend his Application by adding the ground of discrimination on the basis of marital status;

2. Striking paragraphs 2, 6, and 7 of the second page of the applicant's January 16, 2009 attachment to his Application;

3. Striking page one of the above attachment that lists four individual respondents not named in the Complaint; and,

4. Removing Steve Little as a respondent to the Application.

4The applicant responded to the corporate respondent's Request on April 6, 2009.

ADDING MARITAL STATUS AS A GROUND

5The applicant filed the underlying complaint (the "Complaint") with the Ontario Human Rights Commission (the "Commission") on August 23, 2007 alleging discrimination in employment on the ground of disability. The applicant has included a copy of a letter dated September 18, 2008 to the Commission asking to amend the Complaint to include discrimination on the basis of marital status. In his Application the applicant advised the Tribunal his complaint had been amended and relied on the September 18 letter in support.

6The applicant's September 18, 2008 letter to the Commission states:

I wish to amend the above complaint to include discrimination on the basis of Martial [sic] Status as per the Act. My spouse was seriously ill and subsequently passed away. During the period of time I was being unfairly treated by my employer Bruce Edmeades, the issues of my absences for attending to my spouse and subsequent illness arising out of my spouse passing away it was stressful on me.

7The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. The Rules of Procedure (the "Transitional Rules") state that section 53(5) applications "will be processed in a way to ensure their fair, just and expeditious resolution." Transitional Rule 12.3 states that section 53(5) applications "must be based on the subject matter of the complaint or amended complaint filed at the Commission."

8The attached Complaint is not amended to add the ground of marital status. The subject matter of the Complaint deals with the respondents' actions toward the applicant on August 14 and 15 of 2007 and the failure to provide reasonable accommodation of his disability which resulted from an April 2007 workplace injury. The applicant's spouse unfortunately passed away almost six months before the applicant's injury occurred. The original complaint includes no allegations and makes no connections between discriminatory actions by the respondents based on the spouse's health. As such, these allegations are not properly part of this Application.

Requests to Strike

9The respondents ask that the following allegations be struck from the Application:

• Attachment, page 1: the applicant names four individual respondents who are not named in the complaint;
• Attachment, page 2, paragraph 2: allegations about rate of pay. The corporate respondent argues the pay practices described are non-discriminatory and thus outside the Tribunal's jurisdiction. In the alternative, the respondents submit these issues are the subject of an ongoing complaint before the Employment Standards Branch of the Ministry of Labour (the "ESA claim");
• Attachment, page 2, paragraphs six and seven: issues related to the applicant's spouse.

10With a very limited exception, discussed below, all the pay disputes occur prior to the workplace injury on April 11, 2007 that led to the applicant's disability. I am satisfied none of these allegations are relevant to the facts and issues in dispute in this Application. With the exception of the last two sentences of the second paragraph of page two of the attachment, these allegations are struck. As the remaining two sentences deal with pay issues after the date of the applicant's injury they may be relevant to an appropriate remedy if liability is found.

11Given my ruling refusing to add marital status as a ground to this complaint, paragraphs 6 and 7 are struck as not relevant to the issues in dispute on this Application.

12The applicant was advised that he could not add individuals who were not named as respondents to his complaint to his Application. He was advised he might make a Request for Order seeking this relief. To date, the applicant has not done so. Until a Request is made and granted the four individuals who are not named in the Complaint are not respondents to this Application and their names will be struck.

REMOVING PERSONAL RESPONDENT STEVE LITTLE

13The Commission amended the Complaint on December 10, 2007 to include Steve Little as a personal respondent. The corporate respondent requests that he be removed as a party because 1) there are no allegations against him in the Complaint and 2) his employment position with the corporate respondent is not mentioned in the complaint.

14The applicant argues Mr. Little assigned him the allegedly discriminatory work and requested he see personal respondent Ms. Lehman who allegedly sent him home on August 15, 2007. Both the assigned work and being sent home are mentioned in the Complaint.

15It appears to me that the individual conduct of the personal respondent Mr. Little is a central issue in whether or not discrimination occurred as alleged. I find that it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the Complaint. See Persuad v. Toronto District School Board, 2008 HRTO 31. The corporate respondent's request to remove Steve Little as a respondent will be determined by the Case Resolution Conference adjudicator.

Responses of personal RESPONDENTS

16The personal respondents have not yet filed Responses to the Application. By letter dated April 15, 2009 the Tribunal informed them that they have 35 days from the date of delivery of a completed application to them to file their responses using Form TR-2. That time has expired. The Transition Rule 3.2 provides that where a respondent does not respond to an Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application, including the allegations set out in the complaint;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; and

d) decide the matter based only on the material before the Tribunal.

17Where a party fails to comply with the Transitional Rules, pursuant to Rule 3.6 the Tribunal may relieve against that failure with or without terms where to do so would be fair and just and would not substantially prejudice a party or unduly delay the proceeding. The personal respondents therefore are directed to file their Responses immediately and in any event no later than May 27, 2009 with explanations as to why these are late. The applicant will be given an opportunity to make any submissions as to prejudice or delay. Any submissions on the late filed responses will be considered by the Case Resolution Conference adjudicator as per Transitional Rule 3.2.

ORDER

18For all of the reasons above, the Tribunal makes the following orders:

1. The ground of marital status shall not be added to the Application.

2. Respecting the applicant's January 16, 2009 attachment to his Application:

   a. page two; paragraph two shall be amended so that all but the last two sentences shall be struck; paragraphs six and seven shall be struck in their entirety.

   b. The corporate respondent's request to strike page one of the applicant's January 19, 2009 attachment is granted.

   c. If the applicant wishes to request that additional parties be added to his Application:

   1. he shall file a Request for an Order (Form TR-4) no later than May 27, 2009;

   2. the respondents shall file any response by June 10, 2009; and

   3. the applicant may file a reply no later than June 17, 2009.

3. Personal respondent Steve Little shall not be removed from the Application.

4. Personal respondents Jay Jackson, Janet Lehman, Sarah Brestovacki and Steve Little shall file their responses to the Application along with any explanations as to why these are late by May 27, 2009. The applicant shall file any submissions on the late filing by June 10, 2009.

19I am not seized of this matter.