Lewis v. Lakeridge Health Corporation, 2010 HRTO 1096

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Lewis

Applicant

-and-

Lakeridge Health Corporation, CSH Wynfield LTC Inc., Caterina Colangeli and Sandra Kuchmak

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: May 17, 2010

Citation: 2010 HRTO 1096

Indexed as: Lewis v. Lakeridge Health Corporation

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. In a previous Interim Decision, 2009 HRTO 530, the Tribunal granted the applicant’s request to withdraw the Application as against one corporate respondent and four individual respondents. The style of cause reflects the remaining parties.

2The allegations in the Application relate to an unsuccessful job application by the applicant with the respondent Lakeridge Health Corporation (“Lakeridge”). The applicant alleges that Lakeridge discriminated and reprised against her when it failed to offer her employment in November 2008, based on her disclosure of the fact that she had filed a human rights complaint against a former employer.

3The applicant also alleges that the respondent, CSH Wynfield LTC Inc. (“Wynfield”) discriminated against her when it was contacted by Lakeridge for an employment reference and in refusing to provide supporting information in respect of a human rights complaint against another employer.

4The respondent Colangeli is an employee of Lakeridge, and the respondent Kuchmak is an employee of Wynfield. The applicant alleges that all of the named respondents engaged in a “conspiracy” to deny her employment. The respondents deny the allegations.

5On April 29, 2010, the applicant filed a Request for Order During Proceedings (Form 10) seeking to amend the Application and for production of additional documents and particulars from Wynfield. The respondents oppose the Request. This Interim Decision addresses the applicant’s Request.

THE POSITION OF THE PARTIES

6The applicant seeks an order amending her Application to add discrimination based on reprisal by the respondents Wynfield and Kuchmach. She also seeks to add a statement of additional facts (“Statement”) and to file additional supporting documents. In the alternative, the applicant asks that she be permitted to file her Statement and supporting documents in support of the Application. The applicant further seeks production of documents from Wynfield related to the additional allegations of reprisal.

7The respondents Wynfield and Kuchmach oppose the Request on the basis that it is brought late and will cause prejudice; that the proposed amendments are unrelated to the narrow issues in the Application; that the applicant failed to comply with her disclosure obligations under Rules 16 and 17; that granting the Request will necessitate an adjournment, which will delay the proceedings; that the proposed amendments fail to support a breach of the Code and constitute an abuse of process; and that the additional allegations are better suited to a separate Application.

8The respondents Lakeridge and Colangeli oppose the Request on the basis that the additional allegations are completely unrelated to Lakeridge and Colangeli and that they will be prejudiced by expanding the scope of the Application. They too argue that the Request is untimely without any reasonable explanation. They argue that a more appropriate way of addressing the additional allegations is for the applicant to file a separate Application.

DECISION

9The Tribunal has permitted amendments to applications, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. See Dubé v. Canadian Career College, 2008 HRTO 336.

10I am not persuaded that an amendment is necessary in the circumstances. The Application already alleges reprisal, so the grounds need not be amended. The Statement contains additional particulars relating to the allegations contained in the Application. Oftentimes an application will relate to facts that are ongoing. Filing an Application does not necessarily seal the lid on the facts that can be relied upon in support of allegations contained in an Application. At the same time, updating facts and particulars should not be used as an opportunity to expand the scope of an application. Parties are at liberty to request additional time or other reasonable measures to militate against any prejudice.

11Rule 6.2 of the Tribunal’s Rules of Procedure requires that an application specifically set out the underlying facts in support of allegations of discrimination. Rule 6.2 states:

A complete Application must provide the information requested in every section of the Application form and must set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violated the Applicant’s rights under the Code.

12Rule 5.7 provides that a possible consequence for a party which does not set out specific facts in its application or response is that the Tribunal may not allow the party to introduce evidence with respect to those facts. It reads as follows:

Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 17.2 or 18.2, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay in the proceedings.

13It is clear from the Rules that the duty to plead particulars begins with the Application but continues through the disclosure stage. While disclosure should not be an opportunity to expand the scope of the Application, it most certainly is an occasion to focus the scope of the Tribunal’s enquiry in advance of the hearing.

14Although the Rules do not require it, I find that the applicant’s Statement constitutes a further particularization of the allegations, and an update of additional relevant alleged facts.

15I am mindful that the additional particulars do not relate to the respondents Lakeridge and Colangeli. However, in considering what is fair, just and expeditious, I must consider the impact not only on two of the parties, but also on the other parties and on the Tribunal. It is difficult to see how filing a fresh Application would be a more fair, just and expeditious way of proceeding, considering all the circumstances. While the evidence is not significantly overlapping, given the interconnection of the issues, the few witnesses involved, and the fact that they will be testifying already, it makes sense for witnesses to give all of their evidence at one time. The Tribunal has the power to limit the evidence it hears.

16I do not agree with the respondents at this point that an adjournment will be necessary. The applicant is calling just one witness. She indicates the possibility of calling an additional witness, though no disclosure of the proposed witness’s evidence has been filed in accordance with the Rules.

17Regarding the applicant’s request for additional disclosure, the parties are reminded of their ongoing obligation under the Rules to disclose all arguably relevant documents.

18The hearing will proceed as scheduled starting with the applicant’s case. The respondents may raise any remaining concerns about prejudice at the hearing.