HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Prem Kumar
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
The Queen in Right of Ontario as represented by the Minister of Transportation and Patrice Barry
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Kumar v. Ontario (Transportation)
WRITTEN SUBMISSIONS
The Queen in Right of Ontario as represented ) by the Minister of Transportation, Respondent ) George Parris, Counsel
Patrice Barry, Respondent ) Chris Tonks, Counsel
Ontario Human Rights Commission ) Kikee Malik, Counsel
INTRODUCTION
1In this complaint a former employee of the Ministry of Transportation (the Ministry) alleges that he was discriminated against on the grounds of ethnic origin and race during the period of his employment as a part-time examiner with a driver examination centre.
2This Interim Decision deals with a Request for an Order During Proceedings, in which the Ministry seeks to strike certain allegations on the basis that they were not part of the complaint referred to the Tribunal. The Ministry and the Ontario Human Rights Commission (the Commission) filed written submissions, and the personal respondent filed a response consenting to the Request.
BACKGROUND
3The complainant was employed from January 2, 2001 to August 30, 2003 by the Ministry. On October 14, 2003, he made a complaint under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") against the Ministry and his former supervisor. Among the allegations in the complaint are that the complainant was assigned an undesirable shift, was denied positions for which he applied, and was subjected to a higher degree of scrutiny than other employees, because of his ethnic origin and race.
4The complaint form does not refer to the complainant's suspension from work, or the failure to be hired by a private service provider (SERCO), although these events occurred in April 2003 and August 2003, respectively, prior to the filing of the complaint. The Commission's Intake Questionnaire, completed by the complainant prior to the filing of the complaint, does refer to his suspension. As well, a letter from the complainant to the Commission dated the same day as the complaint asks specifically that his suspension and failure to obtain work with SERCO be included in his complaint.
5In addition to his complaint, the complainant filed a grievance through his union, dated July 22, 2003, which appears to refer to the suspension in that it requests "immediate reinstatement" as redress. The Ministry requested the Commission to exercise its discretion not to deal with the complaint, on the basis, among other things, that it was more appropriately dealt with under the collective agreement process for grievance arbitration. The Commission denied the Ministry's request. In its decision, the Commission refers to the termination of the complainant's employment as one of the incidents alleged to be discriminatory.
6During the investigation by the Commission, correspondence between the Commission and the Ministry's counsel indicates that the Commission was seeking information about the suspension, termination of employment and failure to obtain work with SERCO.
7On February 22, 2007, the Commission's investigator provided a Case Analysis Report to the parties in which he summarized the investigation and set out his recommendations to the Commission. Among the issues covered in the Report were the suspension and failure to obtain work with SERCO. In setting out the complainant's position, for instance, the investigator states, at paragraph 2 of his Report:
....He further alleges that the respondents suspended him from his job for improper reasons and took actions that prevented him from continuing his job with a new employer.
8In June of 2007, the Commission decided to refer the complaint to the Tribunal for a hearing and hearing briefs were subsequently exchanged. A prior Interim Decision dealt with the Ministry's request to strike certain allegations in the pleadings on the basis of undue delay, lack of particularity and the conclusions in the Case Analysis.
9This Interim Decision deals specifically with the Ministry's request to strike the allegations about the suspension and failure to obtain work with SERCO, on the basis that they are not encompassed by the complaint.
DECISION
10I accept the Ministry's position that the allegations about the complainant's suspension and failure to obtain work with SERCO were not referred to in the original complaint as filed. However, it is also clear that throughout the Commission's investigation process, and concluding with the Case Analysis, the Commission and the complainant assumed that the allegations about the suspension and failure to obtain work with SERCO were included in the complaint, and the Ministry was aware of this assumption. The investigation proceeded on this basis. Certainly, the Case Analysis of February 2007 made it clear that in the Commission's view, these allegations formed part of the subject matter of the complaint. In these circumstances, I find that by the time the complaint was referred to the Tribunal, it encompassed the allegations at issue.
11If I am wrong in my conclusion that the complaint as referred to the Tribunal includes the allegations at issue, I exercise my discretion to allow an amendment to the complaint. In Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2, enclosed with both the Ministry and the Commission's submissions, the Board of Inquiry stated:
[19] The Board has jurisdiction to amend complaints. In deciding whether or not to permit such amendments, the Board is exercising its discretion. The factors influencing how that discretion will be exercised include the following:
Whether the amendment would occasion actual prejudice to the other party;
Fairness;
The conduct of the party seeking the amendment;
The impact of the proposed amendment on the course of the hearing and any other parties.
12The Ministry suggests that it would be prejudiced by the addition of these allegations to the complaint in that had the Commission amended the complaint prior to the referral, it could have requested a ruling under section 34 (as it then was) and then sought judicial review of such a ruling. This assertion of prejudice is speculative, and in any event, it is not clear what submissions the Ministry might have made that it could not have made to the Tribunal in support of this Request for Order.
13As I have stated, the Commission and the complainant proceeded through the investigation process on the understanding that these allegations were encompassed by the complaint, to the knowledge of the Ministry. Although a formal amendment to the original complaint might have provided more certainty, in these circumstances, it cannot be said that the Ministry was misled or kept in ignorance about the nature of the issues.
14The inclusion of these allegations will have an impact on the hearing, in that they cover matters that are substantial and of a different nature from the other allegations in the complaint. However, on the facts before me, I conclude that it would be unfair not to allow the complaint to be amended.
15The Commission has stated that it does not intend to participate in the hearing of this matter, but has not filed a Request for Order During Proceedings as required by Rule 19 of the Tribunal's Rules of Practice. The Commission is directed to file this Request within a week of this Interim Decision.
Dated at Toronto, this 20th day of May 2009.
"Signed by"
Sherry Liang
Vice-chair