Marie Karpenko v. Green Shield Canada, 2011 HRTO 1611

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Karpenko

Applicant

-and-

Green Shield Canada

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: August 29, 2011

Citation: 2011 HRTO 1611

Indexed as: Karpenko v. Green Shield Canada

WRITTEN SUBMISSIONS BY:

Marie Karpenko, Applicant ) Self Represented

BACKGROUND

1The applicant filed an Application on January 1, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) in which she alleges discrimination in the context of employment on the basis of association with a person who is a member of a group protected under the Code. In essence, the Application alleges that the respondent unlawfully denied her employment in August 2010, because she had a relationship with an employee of the respondent.

2Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intent to Dismiss (“NOID”). The NOID is only sent to the applicant, and requires the applicant to file written submissions.

3On June 14, 2011, the Tribunal Registrar sent a NOID to the applicant, which noted that the Application appeared to be outside of the Tribunal’s jurisdiction because it failed to identify any specific acts of discrimination allegedly committed by the respondent based on any of the grounds listed in the Code. The Tribunal invited the applicant to provide written submissions to identify the specific acts, and an explanation why the Application is within the Tribunal’s jurisdiction.

4On July 12, 2011, the applicant responded to the NOID with submissions with regard to the jurisdictional issue and with a Request for an Order During proceedings (Tribunal Form 10). The Form 10 requested that the application be amended to include family status and marital status as grounds of discrimination.

5With regard to the NOID jurisdictional issue the applicant submits that she was discriminated against because of association with a person with a disability, a prohibited ground under the Code.

6The request to amend the Application is based on the applicant’s allegation, contained in her submissions, that she was asked questions in a job interview conducted by the respondent with regard to her marital status and whether she, “had plans on starting a family”.

ANALYSIS

Jurisdiction

7The applicant notes in her submissions that her allegation with regard to discrimination by association is based on the alleged disability of the associated party, thus making the Application within the jurisdiction of the Tribunal.

8Pursuant to Tribunal Rule 13 an Application will only be dismissed at this stage of the proceedings in all or in part if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction. See, Longtin v. Ottawa Hospital, 2010 HRTO 959. Based on the applicant’s submissions I find that the present circumstances do not make out a “plain and obvious” lack of jurisdiction.

9It should be noted however, that a decision to continue to deal with an application in these circumstances is not a final decision regarding the Tribunal’s jurisdiction in respect to the application. See Longtin above and Tribunal Rule 13.5.

Request to Amend

10In 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, Dunford v. Holiday Ford Sales, 2009 HRTO 1563 and Aubin v. Sudbury Sexual Assault Centre, 2011 HRTO 1281.

11According to the applicant she had a legal consultation after filing the Application and has now received advice with regard to the full extent of her rights under the Code.

12The Application has not yet been served on the respondent. In the circumstances it is my opinion that the respondent would not be prejudiced in granting the applicant’s request for amendment.

13In view of the stage at which the Request to amend are made, the nature of the amendment, and the absence of any apparent prejudice, I see no reason to deny the applicant the requested amendments to the Application.

ORDER

14Section 5 of the Application (“Grounds Claimed”) is amended to include family status and marital status as grounds of discrimination.

15The Tribunal shall proceed with the processing of the Application. Pursuant to Rule 13.4 of the Tribunal’s Rules of Procedure, the amended Application, a copy of this Interim Decision, the applicant’s submissions on the jurisdiction issue, and all correspondence between the Tribunal and the applicant on the jurisdiction issue, together with a Notice of Application, will be provided to the respondent.

16I am not seized.