Gary Crooker v. U.S. Steel Canada Inc., 2011 HRTO 2085

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Crooker

Applicant

• and-

U.S. Steel Canada Inc.

Respondent

Interim decision

Adjudicator: Mary Truemner

Date: November 17, 2011

Citation: 2011 HRTO 2085

Indexed as: Crooker v. U.S. Steel Canada Inc.

1This is an Application filed on September 17, 2009 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It alleges discrimination with respect to employment on the basis of disability. This Interim Decision deals with the applicant’s Request for Order During Proceeding filed on June 27, 2011 (the “Request”), which seeks to amend the Application by adding the allegation of reprisal. The respondent opposes the Request.

2This Interim Decision also directs the applicant to file submissions in reply to the recently filed Response in which the respondent requests that the Application be dismissed early.

BACKGROUND TO THE REQUEST TO AMEND

3The applicant indicates on his Request that the reason for which he believes he was reprised against is because the respondent’s medical director told him that a seven day waiting period for short term disability benefits would be waived, but then the Great-West Life Assurance Company, the company providing the benefits (the “company”), did not waive the waiting period, and the applicant did not receive benefits April 14, 2011 to April 20, 2011.

4Section 8 of the Code 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. The test for reprisal under the Code includes a requirement that there be some evidence of the respondent’s intention to reprise, or evidence of a link between the applicant trying to claim or enforce his rights under the Code and the respondent’s subsequent conduct that might be considered to be retaliatory. Therefore, in a Case Assessment Direction (“CAD”) dated August 3, 2011, the Tribunal directed the applicant to provide submissions on what evidence he has to show that the company’s seven day waiting period was caused by the respondent, and what evidence he has to show that any such instruction or interference by the respondent to the company was intended to be reprisal for the applicant claiming or enforcing his rights under the Code. The Tribunal directed the applicant to file these submissions within 30 days of the CAD. The applicant did not do so.

REQUEST TO AMEND

5In Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2, the Board of Inquiry stated:

The Board has jurisdiction to amend complaints. In deciding whether or not to permit such amendments, the Board is exercising its discretion. The factors influencing how that discretion will be exercised include the following:

Whether the amendment would occasion actual prejudice to the other party;

Fairness;

The conduct of the party seeking the amendment;

The impact of the proposed amendment on the course of the hearing and any other parties.

6Although the above decision was made before amendments to the Code came into effect, the Tribunal has considered similar factors in deciding requests to amend applications made under section 34 of the Code, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. (See Dube v. Canadian Career College, 2008 HRTO 336, Wozeilek v. 7-Eleven Canada, 2009 HRTO 926).

7The applicant has chosen not to follow the direction of the Tribunal to provide submissions to explain what evidence he has to prove any intention by the respondent to reprise, and to connect the respondent to the company’s decision to apply its standard seven day waiting period for short term disability benefits. I therefore choose not to exercise my discretion to grant the Request because it would be unfair to the respondent given the nature of the Request, which appears, given the applicant’s failure to provide the requested submissions, to have no reasonable prospect of success and which would substantially expand the subject-matter of the Application. The Request is denied.

NEXT STEPS

8On September 16, 2011, the applicant should have received from the respondent a revised Form 2 (filed pursuant to a direction in the CAD). In it, the respondent requests that the Application be dismissed under s.45.1 of the Code because a Workplace Safety and Insurance Board proceeding and a grievance process have appropriately dealt with the substance of the Application. The applicant must file any submissions on this issue within 45 days of this Interim Decision, and the Tribunal will schedule a preliminary hearing by way of teleconference to deal with it. The applicant must also be prepared to address at the preliminary hearing whether the Application constitutes an abuse of process and should be barred by issue estoppel and the rule against collateral attack on another tribunal’s decision as the respondent alleges in its revised Form 2.

9I am not seized.