Human Rights Tribunal of Ontario
B E T W E E N:
Helene Loney Applicant
-and-
Combusco Enterprises Ltd. o/ a Ideal Combustion Respondent
INTERIM DECISION
Adjudicator: Ena Chadha Date: June 2, 2011 Citation: 2011 HRTO 1050 Indexed as: Loney v. Combusco Enterprises
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 February 23, 2010 alleging discrimination and reprisal with respect to employment on the basis of sex.
2The Application narrative consists only of three paragraphs. The applicant was employed by Combusco Enterprises Ltd. o/a Ideal Combustion (“Combusco”). In sum, the allegations are that the applicant was subjected to offensive humour at work and experienced workplace stress. She took a medical leave of absence and her employment was terminated by the General Manager upon her return. The Application originally only identified the General Manager as a respondent.
3The respondent General Manager filed a Response on July 7, 2010 and identified Combusco as a potential respondent.
4On May 12, 2011, the applicant filed a Request for Order During Proceedings (“Request”) seeking to amend the Application. The applicant requests that the Application be amended in the following respects: 1) to remove the respondent General Manager from the Application and instead identify Combusco as the organizational respondent, 2) to delete the allegations of sex discrimination and reprisal and instead allege disability discrimination, and 3) to amend the remedial claim to reflect the applicant’s actual lost wages and seek general damages. The Request was delivered to both the respondent General Manager and Combusco, as the proposed organizational respondent.
5On May 20, 2011, the respondent General Manager filed a response to the Request indicating that he agrees that he should be removed from the Application and that he would not comment on the proposed amendments with respect to the allegations and remedies.
6On May 25, 2011, Combusco filed a response to the Request objecting that it should not be added to the Application. Combusco submits that it is now a shell corporation because its assets in Ideal Combustion were sold in February 2011. Combusco indicates that it is prejudiced because it no longer has access to the company’s assets, employees or operations of Ideal Combustion and therefore cannot defend against the allegations. Combusco indicates that the new allegation of disability discrimination against the organizational respondent should proceed as a new application and not an amendment of the current Application.
DECISION
7Rule 1.7(c) of the Tribunal’s Rules of Procedure state that in order to provide for a fair, just and expedition resolution of any matter before it the Tribunal may “allow any filing to be amended.”
8In determining 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).
9I am satisfied that the respondent General Manager should be removed and that Combusco Enterprises Ltd. o/a Ideal Combustion should be added as a respondent to this Application.
10There is no dispute that Combusco was aware of the Application from the outset because the Application was served on the General Manager, who in his Response identified Combusco as an additional respondent. Further, the Application has always alleged discriminatory conditions in the workplace, unfair termination and sought loss of income as a remedy. Section 46.3 of the Code provides for deemed liability for the acts of officers and there is no issue here that as the employer, Combusco, would be deemed liable for the General Manager’s termination of the applicant’s employment. Although Combusco alleges that it is prejudiced if the amendments were allowed, it has simultaneously proposed that the amendments could proceed by way of a new application. This suggests that Combusco’s claim of prejudice is not as serious as alleged. In these circumstances, it is appropriate to remove the General Manager as a respondent and to add the applicant’s employer, Combusco, as an organizational respondent to the Application.
11I am satisfied that the applicant should be permitted to amend this Application to remove the allegations of sex and reprisal and instead include the allegation of disability discrimination. The addition of the ground of disability does not raise new allegations or concerns distinct from the original narrative because the disability allegations were described by the applicant in original narrative. The Response filed by the General Manager also described the applicant’s health concerns and relied on certain alleged facts in denying the discrimination. The proposed addition of disability simply clarifies the core allegations of discrimination in the narrative and does not alter the subject matter of the original narrative.
12The applicant also seeks to amend her remedial claim. The proposed remedial amendments include a claim for general damages and a claim for the actual lost wages experienced by the applicant. I see no reason to deny the request to amend the monetary remedy. In the original Application, the applicant attempted to delineate her lost wages, but left the issue of other remedies blank. It is noteworthy that the Application was originally prepared by the applicant who was self-represented and the amendments were raised by counsel when she secured legal representation.
13These amendments are made without any determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and without prejudice to any position Combusco may wish to take regarding these issues.
14In conclusion, I order the following:
The Application be amended to remove the General Manager as a respondent and to add Combusco Enterprises Ltd. o/a Ideal Combustion. The style of cause is amended accordingly;
The Application be amended to remove the allegations of sex discrimination and reprisal and to add ground of disability