Mugdim Kadic v. AXYZ Automation Inc., 2010 HRTO 2041

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mugdim Kadic

Applicant

-and-

AXYZ Automation Inc.

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 7, 2010

Citation: 2010 HRTO 2041

Indexed as: Kadic v. AXYZ Automation

WRITTEN SUBMISSIONS BY

)

Mugdim Kadic, Applicant ) John Evans, Counsel

)

)

AXYZ Automation Inc., Respondent ) Voula Michaelidis, Counsel

)

BACKGROUND

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on June 2, 2009 alleging discrimination with respect to employment on the basis of disability.

2The Application indicates that the applicant was one amongst a group of eight people laid off by the corporate respondent on February 12, 2009. The applicant believes he was laid off because of his lower back injury. The applicant alleges that he is aware that six of the others individuals also had injuries or health problems. The applicant seek a financial remedy of lost wages for ten years up to the age of 65, including interest. The Application does not seek any other remedial request.

3The respondent filed a Response on July 13, 2009, denying the allegations of discrimination. The respondent submits that it was forced to terminate the employment of various employees, lay off some employees and restructure the work arrangements of remaining employees because of the economic slowdown. The respondent further submits that the applicant was provided with proper accommodation during his employment and that the applicant was laid off only due to economic conditions.

4The applicant filed a reply on July 28, 2009. On January 14, 2010, counsel for the applicant wrote to the Tribunal advising that the applicant had retained legal representation. On April 16, 2010, counsel for the applicant filed a Request for Order During Proceedings (Form 10) seeking to amend the Application.

5This Interim Decision deals with the applicant’s Request for Order During Proceedings asking to amend his Application to add further particulars, to cite a reprisal violation and to request additional monetary relief.

6The respondent filed response submissions on April 30, 2010 objecting to the request to amend the Application. The respondent points out that the applicant had the benefit of counsel for three months prior to making his request to amend. The respondent submit that this request is too late in the proceedings and the delay is prejudicial to the respondent. The respondent asserts that the proposed amendments alter the subject matter of the original Application and request additional remedies.

DECISION

7In considering requests to amend Applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

8I am satisfied that the applicant should be permitted to amend his Application to include the additional particulars, to cite a reprisal violation and to specifically identify the additional remedies sought. The remedial amendments proposed by the applicant include additional remedial relief in the form of general damages, damages for dignity, etc., reinstatement, disability benefits and legal fees. I see no reason to deny the request to amend the monetary remedy. In his Application, the applicant attempted to delineate his lost wages, but left the issue of other remedies blank. This amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding the issue of remedies.

9The additional particulars proposed by the applicant include factual details regarding his employment history and disability history. The respondents do not dispute the arguable relevancy of the additional particulars. The additional particulars do not appear to raise new allegations or concerns distinct from the original narrative. The tenor of the additional particulars echo the original allegations that the applicant perceives he was laid off because of his back injury. I find the proposed additional particulars set out the background to the core allegations of disability discrimination and do not alter the subject matter of the original narrative. In my view, these details are more in the nature of clarification of factual background and may be added to the Application’s original narrative.

10The applicant also seeks to add an allegation of reprisal. This is not a situation where the applicant has experienced new events or facts postdating the Application which may give rise to an alleged reprisal. Here, the allegation of reprisal sought to be added by the applicant relates to the events described in the original narrative. As such, I allow the applicant to cite section 8 of the Code, which provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal.

11The respondent’s main objection to the request to amend is that the request was made three months after counsel had been retained. I do not find three months to be so significant that this timeframe constitutes an onerous delay. Although the respondent claims to be prejudiced by the request, other than this bare assertion, the respondent has not indicated how the delay has prejudiced any rights or interests. The request to amend was made soon after the applicant retained legal counsel and ten months after the applicant filed his original Application. No mediation has taken place and no hearing has been scheduled. I am satisfied that no prejudice flows from these amendments.

12In conclusion, I see no reason to deny the requests to amend to the Application to add the background particulars, to cite a reprisal infringement and additional remedial relief. I order that the Application be amended accordingly. If the respondent wishes to file an amended Response as a result of this order, the respondent may do so within 21 days of the date of this Interim Decision.

13I am not seized.