Fair v. Hamilton-Wentworth District School Board, 2010 HRTO 1712

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Fair

Applicant

-and-

Hamilton-Wentworth District School Board

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 18, 2010

Citation: 2010 HRTO 1712

Indexed as: Fair v. Hamilton-Wentworth District School Board

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated May 18, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on November 24, 2004.

2The applicant alleges that she experienced discrimination in employment because of disability contrary to ss. 5 and 9 of the Code, in relation to her efforts to obtain accommodation for her disability and in relation to the termination of her employment on July 9, 2004.

3The purpose of this Interim Decision is to address the respondent’s request for an order prohibiting the applicant from raising new allegations of fact and grounds for complaint as set out in certain paragraphs of the applicant’s statement of additional facts.

4While I am aware that counsel for the applicant has requested a conference call to make oral submissions on this request, I do not believe that this is necessary given that the Tribunal has received fulsome written submissions and materials from all parties. I accordingly have exercised my discretion to deal with this request in writing.

5I will address the various arguments raised by the parties in relation to each of the paragraphs of the statement of additional facts at issue.

6Paragraph 3 of the statement of additional facts alleges that the applicant had, for a number of months, worked a significant quantity of overtime in an effort to meet the increased demands of her changed responsibilities. The respondent submits that this allegation does not disclose a prima facie human rights issue, and the issue raised falls under the jurisdiction of the court and/or the Employment Standards Act. The applicant takes the position that paragraph 3 simply provides background to her employment history and context and detail to the original complaint.

7This Tribunal clearly does not have jurisdiction to address alleged violations of the Employment Standards Act or of an employer’s common law obligations. However, I do not understand that to be the purpose for which this fact is being asserted. Rather, the fact is being asserted merely as part of the events leading to the applicant’s absence from the workplace on an extended disability leave. I see nothing improper in the assertion of this statement in the applicant’s statement of additional facts.

8As set out in the Tribunal’s Rules for Transitional Applications, the purpose of a statement of additional facts is for the party to identify additional material facts that the party intends to rely upon at the hearing. Not every material fact included in a statement of additional facts needs to identify an allegation of a violation of the Code. These allegations are, or should be, set out in the underlying complaint. Rather, a material fact set out in a statement of additional facts merely serves the purpose of putting the opposing party on notice of additional facts not included in the complaint upon which the applicant intends to rely at the hearing. That is what the applicant has done in this instance.

9The respondent next takes issue with paragraph 16 of the applicant’s statement of additional facts, which raises the issue of the applicant being required to remit payment for benefit coverages while she was on a work hardening program, and the fact that the respondent did not supplement the applicant’s LTD benefits with additional wages or make pension or employment insurance contributions during this period. The respondent takes the position that this is an allegation not raised in the original complaint and is untimely.

10The applicant asserts that this paragraph merely refutes the respondent’s assertion in its Response that the applicant received compensation for her work during the work hardening program, which the applicant has characterized as “volunteer” work. The applicant submits that the respondent’s failure to return her to any form of paid position during her medical leave was clearly an issue in the original complaint and is an issue directly relevant to liability. The applicant further submits that the applicant’s losses during the work hardening program also are relevant to remedy.

11In my view, the complaint on its face did raise an issue about the respondent’s alleged failure to provide her with appropriate accommodation prior to her termination. In paragraph 1(d) of the complaint, the applicant expressly alleges that the respondent “has refused to provide any form of accommodation to an alternate paid position within the organization”. The issue of the extent of the respondent’s duty to accommodate and whether and to what extent it was required to provide the applicant with alternate work are clearly matters at issue in this proceeding. In my view, paragraph 17 properly particularizes a specific assertion that certain payments and remittances were not made during the work hardening period. Whether and how this amounts to a violation of the respondent’s duty to accommodate is a matter to be determined at the hearing.

12Paragraph 17 of the applicant’s statement of additional facts alleges that the respondent failed to fulfil statutory obligations pursuant to the Employment Standards Act when it did not continue to make contributions required to maintain the applicant’s benefits during the statutory notice period. As previously indicated, it is not within this Tribunal’s jurisdiction to determine whether or not there has been a violation of the Employment Standards Act. However, whether or not there was any violation of the Employment Standards Act, the allegation that benefits coverage was not continued post-termination may be relevant to remedy, if a violation of the Code were to be found. While I am aware that the parties have agreed to the bifurcation of the hearing in this matter to deal first with liability and to address remedy only after the liability issue has been determined, I am not prepared to strike this paragraph in its entirety solely because it relates to remedy.

13In her materials, the applicant has asserted that she has the right to challenge assertions made by the respondent in its materials that it fulfilled its obligations under the Employment Standards Act. Whether and to what extent such evidence is relevant and admissible at the hearing is a matter best determined by the adjudicator conducting the hearing. However, I note that merely because one or both parties have asserted certain facts does not necessarily make these facts relevant and admissible in relation to the issues in this proceeding that are properly before the Tribunal, nor does it make such facts necessary for the determination of whether there has been a violation of the Code.

14The respondent next takes issue with paragraphs 18 to 24 of the applicant’s statement of additional facts as improperly seeking to expand the scope of the complaint to raise an allegation of reprisal relating to events which occurred following the termination of the applicant’s employment. In particular, paragraph 24 of the statement of additional facts refers back to the facts alleged in paragraphs 18 to 23 as constituting a reprisal against the applicant for having filed her human rights complaint.

15I will first address paragraph 24 of the statement of additional facts and determine whether it is permissible for the applicant to raise an allegation of reprisal. Section 53(5) of the Code provides that the complainant may make an application to the Tribunal “with respect to the subject-matter of the complaint”.

16Rule 12.3 of the Tribunal’s Rules for Transitional Applications states in its relevant part that “Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission”. While Rule 12.4 contemplates an ability to amend the complaint, this is expressly limited by the words “having regard to Rule 12.3”.

17The Tribunal’s caselaw with respect to transitional applications has held that, except in very limited circumstances, an applicant will not be permitted to raise new allegations that did not form part of the complaint or amended complaint filed at the Commission: see Newman v. Greater Toronto Hockey League, 2009 HRTO 2156; Agbalugo v. York University, 2010 HRTO 785; and Gagne v. Algoma University, 2009 HRTO 2000.

18In her submissions in response, the applicant has cited this Tribunal’s decision in Toneguzzo v. Kimberley-Clark Inc., 2005 HRTO 45, which the applicant has acknowledged pre-dates the amendments to the Code and does not deal with a transitional application. Prior to the effective date of the amendments on June 30, 2008, once a complaint had been referred to the Tribunal by the Commission, the Tribunal’s caselaw permitted amendments to be made to the complaint in certain circumstances to raise post-complaint or even post-referral events, in light of the reality that the only other option for a complainant in such circumstances would be to go back to the start of the process and file a further human rights complaint with the Commission with no assurance if and/or when this subsequent complaint ever would be referred to the Tribunal for a hearing.

19Under the current system, applications are filed directly with the Tribunal and no longer have to go through a pre-referral investigative process at the Commission. As a result, the appropriate process under the current scheme to address post-complaint events is for an applicant to file a new application pursuant to s. 34(1) of the Code.

20The material filed with the Tribunal indicates that in March 2008, while the applicant’s complaint was still active at the Commission, counsel for the applicant raised at least some allegations of reprisal and requested that the complaint be amended to address these reprisal allegations. However, no such amendment to the complaint was ever made, and the letter requesting the amendment was not copied to the respondent nor is there any material before me indicating that the respondent was aware of this request for amendment prior to the service of the Application in June 2009.

21In this regard, I note that the alleged events of reprisal date back to 2004 and 2005, several years prior to the respondent receiving notice that the applicant had sought an amendment of her complaint to allege reprisal under the Code.

22In these circumstances, I do not find that the fair, just and expeditious disposition of this Application requires that I allow the applicant to raise the reprisal allegations. To the contrary, I find that allowing the applicant to raise the reprisal allegations several years after the alleged events would prolong the hearing in this matter, and would be unfair and unjust to the respondent.

23In her materials, the applicant has submitted, if she is required to file a Request for Order seeking leave to amend her complaint to include the reprisal allegations, that she be permitted an opportunity to do so. The issue here is not the formal absence of a Request for Order by the applicant. The issue, rather, is the permissibility of the applicant attempting to raise an allegation of reprisal at this late stage that was not included in the complaint as filed with the Commission and for which no amendment had been made prior to the abandonment of the complaint and the filing of her Application. As a result, I have ruled on this issue and no further Request for Order is warranted.

24Having determined that the applicant is not permitted to raise an allegation of reprisal in this proceeding, I will now turn to consider whether, separate and apart from forming the basis for her reprisal allegation, the statements at paragraphs 18 to 23 of the applicant’s statement of additional facts are properly included.

25Paragraph 18 asserts that the applicant was not provided with severance in accordance with the respondent’s common law obligations. Once again, it clearly is not within this Tribunal’s jurisdiction to determine whether the respondent complied with its obligations under the common law of employment. However, as with paragraph 17, what if any severance was paid to the applicant may be relevant to remedy. The applicant asserts that this paragraph also is relied upon to refute an assertion made by the respondent, to which I offer the same comments in relation to relevance and admissibility as I did with regard to paragraph 17.

26Paragraph 19 states that the respondent did not comply with its statutory obligations post-termination, with reference to the Employment Insurance Act and the applicant’s Record of Employment. Again, the circumstances relating to whether the applicant received employment insurance benefits and, if not, why not, may have some relevance to remedy. Having said that, I offer the same comments in relation to relevance and admissibility as I did with regard to paragraphs 17 and 18.

27Paragraph 20 asserts some comments that are alleged to have been made by the respondent’s Employee Relations Manager to the Employment Insurance Commission about the applicant. The applicant asserts that these alleged comments may be relevant to credibility. In my view, the relevance and admissibility of this evidence is best determined by the adjudicator in the context of the evidence tendered at the hearing. I am not prepared to strike this paragraph at this stage.

28Paragraph 21 asserts that the respondent and its employees interfered with the applicant’s efforts to retrain, and references an “inaccurate and inflammatory e-mail” sent about the applicant. In my view, the allegation that the respondent interfered with the applicant’s efforts to retrain may have some relevance to remedy. As with the previous paragraph, the relevance and admissibility of the e-mail is best determined by the adjudicator.

29Paragraph 22 asserts that the respondent failed to reply to the applicant’s offer to attend mediation. While the applicant has taken the position that this allegation is relevant to remedy, I fail to see the relevance of this allegation to the matters at issue in this proceeding. This paragraph is struck.

30Paragraph 23 asserts that the respondent failed to make good faith efforts to cooperate in the Commission’s investigation and mediation process, and provided inaccurate information to the Commission and the Tribunal. This Tribunal does not police the Commission process or how parties did or did not conduct themselves in that process. Whether specific statements made to this Tribunal are accurate, if these statements are relevant to the matters at issue, is a matter to be determined at the hearing. A general allegation that a party made inaccurate statements either to this Tribunal or to the Commission is not helpful. Paragraph 23 is struck.

31Finally, the respondent has raised an issue as to the timeliness of the allegations raised in the applicant’s statement of additional facts. Paragraph 34(1) of the Code applies to incidents which are alleged to constitute a violation of the Code, not to additional facts asserted by a party in support of allegations already raised. As I have struck the paragraph by which the applicant seeks to raise an allegation of reprisal, I find that the paragraphs at issue do not raise any new allegation of a violation of the Code that is not already raised in the complaint. Accordingly, no issue of timeliness under s. 34(1) is raised by the paragraphs in the statement of additional facts which I have permitted to remain. Any issue regarding the weight to be given to certain evidence on account of delay may be raised before the adjudicator.

32For all of the above reasons, the respondent’s request is allowed in part and paragraphs 22, 23 and 24 are struck from the applicant’s statement of additional facts. With regard to the remaining paragraphs at issue, these paragraphs remain in the statement of additional facts subject to the comments I have made in this Interim Decision. This Interim Decision will be brought to the attention of the adjudicator, and no amended statement of additional facts need be filed by the applicant.

33I am not seized.