HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lee Thompson
Applicant
-and-
Liquor Control Board of Ontario and the Ontario Public Service Employees Union
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Thompson v. Liquor Control Board of Ontario
1This Application, filed on April 28, 2009 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleges discrimination in employment on the basis of race, colour, ancestry, disability, family status as well as reprisal.
2This Interim Decision addresses the applicant’s Request for an Order During Proceedings (“RFOP”) to amend his Application. The applicant requests to add three more allegations of discriminatory treatment by the respondent, the Liquor Control Board of Ontario (the “LCBO”).
BACKGROUND
3The applicant has been an employee of the LCBO since 1993 and is currently a full time Customer Service Representative. He has been working in various LCBO retail outlets in the greater Toronto area. The applicant alleges that he has been repeatedly the subject of discriminatory treatment by the LCBO, principally in relation to his efforts to be transferred to a LCBO location closer to his home in Brampton.
4In an Interim Decision dated April 8, 2010, 2010 HRTO 779, the Tribunal dismissed all allegations in the Application related to events up to and including July 10, 2006 on the basis that they have been appropriately dealt with under a settlement arising from a grievance procedure.
5The applicant’s RFOP was filed October 4, 2010. The LCBO’s Response to the RFOP was filed October 18, 2010. The applicant’s further Reply was filed October 26, 2010. The other named respondent, the Ontario Public Service Employees Union, did not respond to the RFOP.
6The Tribunal deferred consideration of the RFOP pending the outcome of the scheduled mediation between the parties. The mediation, which was held on November 18, 2010, did not resolve the dispute between the parties.
THE REQUEST TO AMEND THE APPLICATION
7The applicant’s RFOP requests that the Application be amended to include three further allegations.
The applicant alleges that he has been injured since June 2008 with chronic right Si Axonal damage and that this injury contributes to the chronic pain he suffers during his commute to work. The applicant alleges that the LCBO has been provided recent medical information about this condition and requests that the applicant be transferred. The applicant states that he has not been transferred to a job closer to his home which would help him avoid a substantial commute to work. (The “Transfer Allegation”)
The applicant alleges that he has been denied Acting Manager shifts on Sundays as a result of a disability. The applicant states he has been absent some Sundays because of his disability. The applicant alleges that the LCBO has not given him the Acting Manager shifts because it has determined that he is not reliable because he has missed some Sunday shifts. The RFOP also describes the LCBO’s actions as retaliation. (The “Sunday Allegation”).
The applicant alleges that he needs to care for his young child and his mother who has cancer while his wife takes a nursing program in the evenings. He alleges the LCBO has turned down two recent accommodation requests not to work night shifts. (The “Accommodation Allegation”).
The applicant attaches three documents to his RFOP: a note from the WSIB dated September 21, 2010 to suggest that the applicant has limitations that require that he avoid prolonged sitting, driving or walking, and two doctor’s notes dated July 19, 2010 that state that he has chronic Si Axonal damage and that he has medical restrictions arising from this condition that include not being able to drive or sit more than 30 minutes.
8The LCBO opposes the applicant’s RFOP. It submits that it is already aware of the applicant’s June 2008 injury that gives rise to the Transfer Allegation and has accommodated this injury as is outlined in their Response to the Application (paragraphs 32 to 39 of Schedule “B”). The LCBO submits that it has not received a transfer request based on the recent medical documents submitted with the RFOP although it is now in receipt of these medical documents. It submits that the Transfer Allegation does not raise a prima facie instance of discrimination and the Request to add this allegation is, at best, premature.
9The LCBO submits the Sunday Allegation is a completely new allegation unrelated to the substance of the Application which centres on the applicant’s interest in being transferred to a job closer to his home. It argues that although the applicant has referred in his Sunday Allegation to retaliation, there is no reference to this being retaliation or reprisal for filing an Application.
10The LCBO submits that the Accommodation Allegation does not raise a prima facie case of discrimination and is premature, at best. It states that the two requests of the applicant not to work night shifts are dated September 16, 2010 and September 23, 2010. However, the applicant has not been working nights since before these requests were made because of a WSIB related injury. The LCBO submits that it has not denied or even responded to these requests for accommodation given these circumstances and that any response has yet to occur.
11The applicant’s Reply to the respondent’s Response states that:
It’s not premature for me to request nights of (sic) because I will be returning to work in 4-5 weeks, therefore I need to know now so I can plan my life. With respect to working closer to home I will provide a letter indicating I NEED to be close to home at a later date. With respect to the employer refusing to giving acting shifts, again, I strongly believe this is in retaliation for filing my human rights complaint and subsequent amendment There is no just cause to refuse me acting shifts because I missed a few as a result of my disability.
ANAYSIS AND DECISION
12In Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16, the Tribunal laid out some of the factors considered when determining whether to allow an applicant to amend an application or add additional allegations:
a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,
b. Whether the allegations provide a useful context for considering the legal issues in the case,
c. The reasons for raising the allegations at this date,
d. The quality of the evidence to support the additional allegations,
e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and
f. The impact of the proposed amendment on the course of the hearing and the other parties
13It is clear from the Application and Response and attendant documents that the applicant and the LCBO have had a number of long standing disputes. The issues raised in the Application are numerous and relate to multiple grounds under the Code. The matter is complicated by the fact that the parties have an ongoing relationship and the principal issues raised in the Application are not resolved.
14I am concerned that the opportunity for the parties to participate in a just, fair and expeditious hearing will be affected if parameters are not clearly drawn around what issues will be the subject of a hearing. In this particular instance, I am concerned that some of the allegations now being raised by the applicant about ongoing issues in dispute appear to be essentially speculative in nature - what the respondent might do. Some allegations are, in my view, distinct new allegations. Accordingly, the Request to amend the Application is allowed in part.
15The Application will be amended to include the Transfer Allegation: that the respondent has not responded to recent medical reports about a chronic condition arising from the applicant’s June 2008 injury and to requests that the applicant be allowed to transfer. I am satisfied these allegations flow from the continuum of facts of the original Application. The Application will be amended to include the specific paragraph in section 4 of the RFOP addressing this issue.
16The respondent contends that the applicant has provided few particulars in relation to this allegation. I agree. The applicant is directed to provide further particulars as to when and how these medical reports and transfer requests were communicated to the LCBO, and what responses he may have received. The applicant must deliver to the respondents and file these particulars with the Tribunal by February 16, 2011. The LCBO has until March 2, 2011 to file any amendments to its Response.
17The Request to amend the Application to include the Sunday Allegation is dismissed. I am of the view that this is a new and distinct allegation that is not related to the applicant’s principal concerns over the refusal of the respondent to transfer him to a different store location. To include this allegation would, in my view, unduly broaden the scope of the present Application.
18The RFOP contends that the respondent failed to give him Sunday Assistant Manager shifts in retaliation. The applicant states in his Reply that he believes the refusal to provide him with assistant manager shifts this was done in reprisal for the applicant having filed an Application. However, the applicant has failed to provide any evidence either in his RFOP or in his Response to support this contention. If the applicant wishes to pursue this allegation, it is open to him file a further Application.
19The Request to add the Accommodation Allegation is dismissed. The LCBO submits that it has not considered to date the two requests made by the applicant for accommodation because of the applicant’s WSIB related injury. I am satisfied that the applicant in his Reply makes clear that his concern is that the LCBO might deny him this accommodation in future. This is speculative and, in my view, the Application should not be amended to include an allegation about a possible future action.
20I am not seized of this matter
Dated at Toronto, this 1st day of February, 2011.
”signed by”_______
Eric Whist
Vice-chair