HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Feng Xu
Applicant
-and-
Quality Meat Packers Limited, Fabijan Selak and Orville Harris
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Xu v. Quality Meat Packers
1This Interim Decision addresses the applicant’s Request for an Order During Proceedings (the “Request”) to amend his Application to add further allegations.
2The Application was filed on February 26, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of race, colour, ancestry, place of origin, citizenship, ethnic origin, sex and reprisal. The Application alleges that the applicant was harassed by fellow employees from January 2009 until the time of his Application and cites a number of specific incidents of this alleged harassment. The Application alleges that the corporate respondent failed to adequately investigate the applicant’s written complaint of harassment and that the applicant’s locker was defaced in reprisal for the applicant making a further complaint of harassment to the corporate respondent.
3A hearing in this matter has been scheduled for December 21, 2011.
4The applicant filed his Request on November 22, 2011. The applicant requests that the Application be amended to include material facts related to the termination of his employment on September 20, 2011. The applicant submits that the respondent’s decision to terminate his employment was a reprisal for the filing of his Application.
5The corporate respondent and Fabikan Selak, one of the two named personal respondents, filed a Response to the applicant’s Request on November 25, 2011. The other personal respondent, Orville Harris, has not filed a Response. The corporate respondent and Mr. Selak oppose the applicant’s Request stating that the applicant has already filed a grievance in respect of the applicant’s termination that is proceeding to arbitration. The corporate respondent and Mr. Selak further submit that the applicant has filed two other grievances, a “reprisal” grievance and a grievance claiming discrimination and harassment that are also proceeding to arbitration and consequently the current Application should be deferred pending the outcome of the arbitration process.
6The corporate respondent and Fabikan Selak have provided copies of the three grievances. The first dated September 20, 2011 states that the nature of the grievance is “Unjust termination” and that the date of the occurrence is September 20, 2011. The second, dated October 5, 2011, states that the nature of the grievance is “Reprisal for pursuing legal rights” and that the date of the occurrence is ongoing. The third, dated September 19, 2011, states that the nature of the grievance is “Discrimination, intimidation and harassment” and that the date of the occurrence is ongoing.
ANALYSIS AND FINDINGS
7In considering 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(s). See, for example, 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. The Tribunal is also guided by what would be most fair, just and expeditious in the circumstances.
8For the reasons that follow, the applicant’s Request to amend the Application is denied. The Application alleges that the applicant was subject to harassment by fellow employees and that the corporate respondent did not adequately respond to his complaints in the period January 2009 to February 2010. The proposed amendments are to include allegations regarding the events surrounding the termination of the applicant’s employment 17 months later in September 2011. These allegations are substantial in nature and would decidedly broaden the scope of the hearing. The Request is also late, coming approximately one month prior to the scheduled hearing. In my view, the limited time the respondents have to respond to this Request prejudices the respondents. It may also require that the hearing be adjourned. In my view it would not be fair, just or expeditious to allow the applicant’s Request.
9It is still open to the applicant to file a separate application in regards to the events of September 20, 2011 that relate to the termination of his employment .
10This matter is also complicated by the fact that the applicant has filed grievances not only in relation to the termination of his employment but in relation to prior discrimination and harassment and reprisal. It is not clear to what degree the grievances related to discrimination and harassment and reprisal overlap with the allegations contained in the Application. It is not clear when the grievances are proceeding to arbitration and how they will be dealt with (e.g. together or separately).
11The corporate respondent and Mr. Selak have raised in their Response the issue of whether the Application should be deferred pending the outcome of these grievances. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. The purpose of deferring an application is to ensure that proceedings dealing with some or all of the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. The present case is somewhat unusual, however, in that the Tribunal already scheduled a hearing before the grievances were even filed.
12Under the circumstances the Tribunal will proceed with its scheduled hearing for December 21, 2011. At the hearing the Tribunal will consider as a preliminary matter whether the hearing should be deferred pending the outcome of the applicant’s grievances. The parties and the applicant’s bargaining agent, the United Food and Commercial Workers Union Locals 175 and 633, which has intervenor status, should be prepared to make submissions on the issue of deferral.
13The parties should be prepared to proceed to present their cases in the event that the Tribunal determines that it will not defer the Application.
ORDER AND DIRECTION
14The applicant’s Request to amend the Application is denied.
15The hearing will proceed on December 21, 2011 as which time the Tribunal will consider as a preliminary matter whether the hearing should be deferred pending the outcome of the applicant’s grievances. The parties should be prepared to proceed to present their cases in the event that the Tribunal determines that it will not defer the Application.
Dated at Toronto, this 2nd day of December, 2011.
”signed by”____
Eric Whist
Vice-chair