Wales v. Toyota Motor Manufacturing Canada, 2011 HRTO 2022

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicole Wales Applicant

-and-

Toyota Motor Manufacturing Canada Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: November 7, 2011 Citation: 2011 HRTO 2022 Indexed as: Wales v. Toyota Motor Manufacturing Canada

WRITTEN SUBMISSIONS

Nicole Wales, Applicant ) On her own behalf Toyota Motor Manufacturing Canada, Respondent ) Ted J. Kovacs, Counsel

1The purpose of this Interim Decision is to determine a Request for Order During Proceeding (“Request”), in which the applicant seeks to amend the Application and obtain production of certain documents.

2For the reasons that follow, the Request is granted in part.

OVERVIEW

3The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondent discriminated against her in employment based on disability. The applicant also alleges reprisal or threat of reprisal.

4The applicant has filed detailed allegations in support of the Application. In essence, she argues that she raised a number of health and safety issues. She states that she was harassed by other employees because of these health and safety complaints and that she was reprised against when, shortly afterwards, her performance was reviewed and she received negative feedback. The applicant also alleges that the respondent failed to investigate her complaints of harassment and that it failed to accommodate her disability.

5As I understand it, the applicant alleges that a human resources officer (Barrie Furney) acknowledged that she was being harassed in the workplace, but stated that the harassment was related to the applicant’s gender, not to the health and safety issues she raised.

6The respondent has filed a Response in which it denies the allegations of discrimination. It also denies that Mr. Furney acknowledged the applicant was being sexually harassed. The respondent also argues that the applicant’s allegations of harassment and reprisal relate to the fact that she raised safety issues and are not based on any Code-related ground.

7The applicant filed a Reply in which she states, among other things, that the alleged harassment and reprisals were based on her gender. I note, however, that the original Application does not identify sex or sexual harassment as alleged grounds of discrimination.

8The parties participated in a mediation on June 23, 2011. The mediation did not result in a settlement agreement.

REQUEST TO AMEND AND REQUEST FOR PRODUCTION

9In November 2010, the applicant filed a Request seeking to amend the Application and asking for the production of documents “included” in her performance review.

10In regards to the proposed amendments, the applicant seeks to add sex as a further ground of discrimination. She states that the original Application and the Reply contain allegations of discrimination that relate to this additional ground, which she says she did not identify in the original Application because of an oversight.

11The applicant is also seeking to amend the narrative of the Application to add a number of allegations. The applicant has attached to her Request a narrative setting out further allegations (“Narrative”) as well as a written complaint that she appears to have given to the respondent at an earlier date (“Written Complaint”).

12The additional allegations contained in the Narrative relate to an alleged failure on the part of the respondent to follow up on an incident in the workplace, alleged harassment based on disability, alleged failure to accommodate the applicant’s disability, and an alleged failure to provide training to the applicant because of her disability.

13The Written Complaint attached to the Request relates to a number of interpersonal and other issues the applicant allegedly had in the workplace, including others’ work and disputes over work assignments. It also raises issues as to whether or not appropriate safety standards were being followed and whether the applicant received appropriate training.

14In August 2011, the respondent filed a Response to the RFOP in which it objects in part to the proposed amendments. It makes no submissions and takes no position regarding the requested disclosure.

15Although it denies the allegations of discrimination, the respondent does not object an the amendment of the Application to include the ground of sex on the basis of the allegations contained in the Reply or the Request, where those allegations are made within one year of the alleged incident of discrimination.

16The respondent argues that any additional amendments are untimely and prejudicial and ought to be denied. More specifically, the respondent states:

a) The applicant did not make any allegations regarding a failure to train until she filed the Request. The Application, Reply and Written Complaint contain no such allegation and these are untimely and prejudicial; and

b) The allegations contained in the Written Complaint regarding others’ work performance, work assignments and interpersonal issues do not relate to the Code.

DECISION

Request For Production

17The applicant’s request for production of documents related to her performance review is granted. These documents are arguably relevant to the Application and the respondent has not objected to this aspect of the Request.

18Accordingly, in complying with its disclosure obligations under Rule 16 of the Tribunal’s Rules of Procedure, the respondent will deliver to the applicant a copy of any documents related to her performance review.

Request To Add Grounds Of Discrimination

19The applicant’s request to add sex as a grounds of discrimination is granted. Again, the respondent has not objected to this portion of the Request. Further, I am satisfied that the applicant’s allegations appear to relate to this ground.

New Allegations Regarding Training

20The applicant alleges that the respondent failed to offer training opportunities to her because of her disability. She raises this for the first time in the Narrative. I note that the Written Complaint also mentions missed training opportunities, although it does not make any connection between this and the Code.

21The respondent argues that this amendment ought not to be allowed because it relates to incidents that occurred more than two years ago. It argues that it will be prejudiced by such an amendment, which will broaden the scope of the Application, result in a need to respond to the amendments, and lead to delays in the proceedings.

22As I have indicated, although the Tribunal is addressing the Request at this relatively late stage of the proceeding (in part because the parties participated in a mediation) the Request was actually filed in November 2010. The Application itself was filed on September 22, 2010. Thus, there is no significant delay on the applicant’s part in raising the proposed amendments.

23Based on the materials filed, it is not entirely clear when the respondent allegedly failed to offer training opportunities to the applicant. It is also not entirely clear (and the parties have not made submissions on this issue) whether the alleged failed training opportunities are part of an alleged series of discrimination. I am not, at this stage of the proceeding, prepared to conclude that the allegations based on training are untimely.

24In determining whether to allow the applicant to amend the Application to include allegations related to training opportunities, I have considered the timing of the request, the nature of the proposed amendments and the respondent’s objections, including as they relate to prejudice.

25I am not satisfied that the prejudice identified by the respondent warrants refusing to allow the amendment in the circumstance.

26The request to amend the Application to include allegations regarding training is granted. This is without prejudice to the respondent’s ability to raise timeliness issues at the hearing of this matter.

Request To Add Other Allegations

27I have carefully reviewed the Written Complaint. While it goes in to some detail about alleged workplace issues, I find that with the exception of allegations related to training, it contains no Code-related allegations.

28As it has stated on a number of occasions, the Tribunal does not have a general power to decide whether the respondent treated the applicant fairly. The Tribunal’s powers relate only to alleged discrimination and violations of the Code.

29The Written Complaint raises workplace issues without alleging that they arose out of a Code-related ground. Even when read in conjunction with all of the other documents filed by the applicant in support of her Application, there is no basis to find that the allegations contained in the Written Complaint (except as they relate to training) relate to the Code.

30For this reason, the applicant’s request to amend the Application to include the Written Complaint is denied, except as it relates to training.

31In regards to the Narrative, I find that it does appear to raise issues related to the Code. In considering whether it is appropriate to allow the applicant to amend her Application to include the allegations contained in the Narrative, I have considered the stage at which the request was made, the nature of the amendments, and whether there is any apparent prejudice to the respondent if the amendments are allowed.

32As I have indicated, there is no significant delay on the applicant’s part in raising the proposed amendments. Further, except as it relates to training, the nature of the amendments proposed in the Narrative essentially relate to issues already raised in the Application and the Reply.

33The respondent argues that it will be prejudiced in having to respond to allegations that date from more than two years ago. It also states that it will be prejudiced by the broadening of the Application and the delays and increased hearing time that will entail.

34I am not satisfied that this prejudice to the respondent warrants denying the applicant’s request to add to the allegations in the circumstances. While the proposed amendments may broaden the scope of the Application, the Request was made shortly after the Application was filed and the Narrative does not substantially change the nature of the allegations.

35For these reasons, the request to amend the Application to add the Narrative is allowed.

SUMMARY

36The applicant’s request to amend the Application is granted in part.

37The following aspects of the applicant’s Request are granted:

a) The request to include sex as a the ground of discrimination;

b) The request to include allegations of discrimination based on a failure to provide training; and

c) The request to amend the Application to include the Narrative attached to the Request.

38The applicant’s request to amend the Application to include the Written Complaint is denied, except as the Written Complaint relates to training.

39Further, the Tribunal orders as follows:

a) Within 20 days of the date of this Interim Decision, the respondent may file an Amended Response. Amendments to the Response may address only the amendments to the Application. This is not an opportunity to otherwise expand upon the Response;

b) Within 25 days of the date of this Interim Decision, the applicant may file an amended Reply. Amendments to the Reply may only address amendments to the Response. This is not an opportunity to expand upon the Application; and

c) In complying with its disclosure obligations under Rule 16 of the Tribunal’s Rules of Procedure, the respondent will deliver to the applicant a copy of any documents related to her performance review.

40This matter will be set down for two days of hearing.

41I am not seized of this matter.