Grills v. Proctor and Gamble Inc., 2011 HRTO 2009

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Grills

Applicant

-and-

Proctor and Gamble Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: November 4, 2011

Citation: 2011 HRTO 2009

Indexed as: Grills v. Proctor and Gamble Inc.

WRITTEN SUBMISSIONS

Linda Grills, Applicant ) Self-represented ) ) Proctor and Gamble Inc. Respondent ) Madeleine Loewenberg, Counsel ) )

1This Interim Decision deals with the respondent’s request for production and its request to dismiss portions of the Application on the basis of delay and lack of jurisdiction. It also deals with the applicant’s request to amend her Application to add particulars of sexual harassment by a co-worker.

2The applicant filed her Application on March 21, 2011, alleging discrimination in employment on the basis of disability, age and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant’s particulars, set out in section 8 (“What Happened”) consist of 30 pages of typewritten material interspersed with multiple pages of documents. Although this material is often repetitious, it is detailed in its description of the allegations.

3The respondents filed a Response and a Request for Order During Proceedings (Form 10) on May 13, 2011. The applicant filed a Response to the Request for Order (Form 11) opposing the request for production and the requests to dismiss on the basis of delay and lack of jurisdiction.

4The applicant also filed three Replies to the Response on May 25, June 9 and June 15 respectively. The two June Replies contain more documents, as well as further narratives, which are interspersed among the documents. The manner in which these pleadings are organized makes it extremely difficult to locate her pages of narrative amongst all the documentary material. It is also extremely difficult to discern whether she is setting out new allegations or simply repeating material contained in earlier pages of narrative.

5For any future pleadings or written submissions, the applicant is directed to separate her submissions and/or narrative from her documents, and number all pages. This should minimize the duplication and confusion referred to above.

6After the above documents were filed, the applicant filed a Request for Order During Proceedings on September 1, 2011 to amend her Application to include allegations of sexual harassment. The respondent filed another Request for Order During Proceedings, which, in essence, is its response to the applicant’s Request.

DECISION AND ANALYSIS

Request for Production

7In the Request the respondent seeks extensive production of documents from the applicant, in particular medical records, on the basis that the information sought is arguably relevant to the issues raised in the Application and Response.

8Rule 16 of the Tribunal’s current Rules of Procedure set out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case. Indeed, the parties have expressed an interest in participating in mediation and that will take place first. Only if the matter does not settle at mediation will the Application be set down for hearing.

9Under the Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent.

10The respondent has not identified any exceptional circumstances in this case. Through her pleadings, the applicant has shared numerous medical reports/records with the respondent already. In any event, the respondent was able to file a Response, which is detailed. The applicant is, of course, encouraged to share additional documents prior to mediation if such disclosure would facilitate the mediation process, but such disclosure would be voluntary. The respondent’s request for production at this stage is denied as premature.

Request to Dismiss

11The respondent points out that many of the allegations in the Application occurred more than a year before March 21, 2011, which was the date the applicant filed with the Tribunal. It asserts these allegations are barred by virtue of s. 34 of the Code, which states, in part:

(1) If a person believes that any of her or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

12In addition, the respondent states that many of these same allegations are outside the jurisdiction of the Tribunal, in that they fail to allege a breach of the Code. The respondent points out that the applicant sets out some of her allegations under the headings “defamation,” “unsafe working conditions” and “wrongful dismissal.” The Tribunal derives its jurisdiction (power) to decide matters from the Code. It does not have the jurisdiction to deal with other legal causes of action, including the three listed above, unless they also constitute discrimination on the basis of one of the enumerated grounds in one of the enumerated social areas (in this case employment).

13The Tribunal has stated in numerous cases that it does not adjudicate general claims of unfairness or harassment. There must be a nexus between the allegation of unfairness and/or harassment and a ground under the Code. In the absence of such a nexus, no violation of the Code can be found.

14In light of the above statements of the law concerning delay and jurisdiction, I will deal with the allegations set out in the Application in chronological order.

i. “Unsafe Working Conditions”

15The applicant alleges that when she arrived at the respondent company in March 2008, she discovered that the written physical requirements for the job either under-represented the actual demands of the job, or were lacking in precise information. While this may be useful as background information (if it relates to the failure to accommodate a disability at some later stage), the Tribunal does not have the jurisdiction to deal with freestanding occupational health and safety concerns. Moreover, the Tribunal is not required to determine what caused a disability, but simply whether the applicant was discriminated against on the basis of that disability regardless of cause.

16The portion of the Application that deal with these allegations is, accordingly, dismissed.

ii. “Verbal Harassment:” June-July 2008 and Fall 2009

17The applicant alleges that she was subject to verbal abuse by a co-worker for two months in the summer of 2008 and by another contract co-worker in the fall of 2009. She does not link this behaviour to a ground under the Code, and on that basis alone the allegations must be dismissed.

18Moreover, the applicant filed her Application in March 2011, approximately one and half years after the last of these incidents (and almost three years after the first alleged “verbal abuse” took place). These incidents are unrelated to the subsequent incidents of alleged age and disability-related discrimination and cannot be considered part of a “series of incidents” as that term is used in the Code. The applicant has failed to provide any reason, good faith or otherwise, why she did not file within the one-year time limit.

19Accordingly, this portion of the Application must be dismissed as outside the jurisdiction of the Tribunal on the basis of delay as well as lack of connection to a ground under the Code.

iii. Incidents January – March 15, 2010

20The narrative in the Application alleges that from January onwards, the respondent failed to accommodate her, harassed her about her absenteeism, terminated her employment on the basis of age and disability and discouraged her from filing a WSIB claim. Moreover, she alleges she was not offered the appropriate advice by the company’s medical personnel.

21The respondent submits that any allegations that pre-date the one-year time limit (i.e. any allegations prior to March 21, 2010) should be dismissed on the basis of delay. However, at this stage it is not obvious to me that these allegations are not part of a “series of incidents” which culminated in the alleged termination of the applicant’s employment in April 2010 – within the one-year time limit. I am not prepared to exercise my discretion at this stage to dismiss these allegations, although the respondent is not barred from raising them at the hearing, should this Application proceed to the hearing phase.

iv. “Defamation”

22As noted above, whether or not the applicant was “defamed” by the representative of the company retained to deal with the applicant’s WSIB matter is not a legal issue over which this Tribunal has jurisdiction to opine. However, what was said by this individual may be relevant to the question of accommodation of the applicant’s disabilities and/or her claim for damages.

Request to Amend

23As noted above, the applicant filed her Application on March 21, 2011, and made her Request to amend that Application to add a number of allegations of sexual harassment more than five months later. Many of the allegations are undated, but appear to relate to the year the applicant commenced her employment with the respondent – 2008 – and apparently ended in January 2010. They appear to all relate to the actions of a co-worker and largely involved non-work related social events that took place at the co-worker’s residence. The applicant does not allege that the respondent was aware of this conduct.

24The respondents filed a Request for Order (Form 10) asking the Tribunal to “disregard” these allegations. One of the reasons for the respondent’s request is that the allegations were made outside the one-year time limit set out in s. 34(1) of the Code.

25Section 34 (1) applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments. The Tribunal can, and has, granted amendments to Applications after the one year period without requiring the applicant to satisfy the test under s. 34(2) of the Code.

26Having said that, s. 34 does set out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced.

27In this case, the Request to amend was filed between 19 months and more than three years after the incidents set out in the Request. Had the applicant included these allegations in the original Application, they may well have been dismissed for delay because they were out of time even in March 2011.

28The applicant has failed to provide a good faith explanation for the delay, other than she found it difficult to bring the allegations forward. Moreover, the respondent asserts it is prejudiced by the Request in its ability to have witnesses recall the time period in question. Moreover, the allegations significantly alter the case the respondent has to meet.

29For the reasons set out above, I am not prepared to grant the applicant’s Request to amend her Application.

ORDERS

30In sum, the Tribunal makes the following orders / directions:

1. In all subsequent pleadings and/or submissions to the Tribunal, the applicant is directed to separate her submissions and/or narrative from her documents, and number all pages;

2. The respondent’s request for production at this stage is denied;

3. The portions of the Application that deal with the alleged “unsafe working conditions,” the verbal harassment between June-July 2008 and the verbal harassment in fall 2009 are dismissed as being outside the jurisdiction of the Tribunal; and

4. The applicant’s request to amend her Application to include allegations of sexual harassment in the period between 2008 and January 2010 is denied.

31I am not seized of this matter.