Pandya v. Priyance Hospitality, 2011 HRTO 553

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosita Pandya

Applicant

-and-

Priyance Hospitality Inc., Harpreth Sethi and Nick Kochar

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: March 18, 2011

Citation: 2011 HRTO 553

Indexed as: Pandya v. Priyance Hospitality

1This Application was filed on January 14, 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 based on race, disability and record of offences. This Interim Decision addresses a Request for an Order During Proceedings ("RFOP") filed by the applicant on February 17, 2011 requesting to amend the Application.

2The respondents have contacted the Tribunal to indicate that the proper legal name of the corporate respondent is Priyance Hospitality Inc. rather than Radisson Plaza Mississauga. The style of cause is amended accordingly.

3The Application briefly describes events that took place after the applicant returned to work with the corporate respondent on November 23, 2009 until her employment ended, it appears, on January 8, 2010. The Application alleges that the respondents did not accommodate the applicant's requirement for modified work, refused to pay her wages and filled her position with another person. The Application seeks a financial remedy for unpaid wages.

4The applicant's RFOP provides a narrative essentially consisting of three parts. It provides further particulars centring on events that occurred in the period after November 2009 when the applicant returned to work with the corporate respondent although the RFOP also refers to a Ministry of Labour decision made in December 2010 under the Employment Standards Act, 2000 for unpaid wages. It also includes a specific request to amend the Application in order to add general damages for the alleged failure to accommodate the applicant upon her return to work. Finally, the RFOP includes a list of the three ways in which the applicant believes that the respondents have violated her Code rights including an allegation of harassment against one of the personal respondents arising out of one particular incident that the RFOP describes. In my view the applicant is seeking to have this entire narrative included as an amendment to the Application.

5The respondents have filed a Response to the RFOP stating that they object to the proposed amendments. The respondents submit that the applicant is inappropriately seeking to add a new head of damages not previously claimed. They object to the timing of the Request to amend the Application noting that the deadline for the applicant to file a Reply has passed, the respondents have already provided a detailed Response and the parties have concluded a mediation. The respondents submit that any facts concerning the proceedings with the Ministry of Labour or the Ontario Labour Relations Board occurred after the applicant severed her employment with the respondents and are irrelevant to the Tribunal's proceedings. In the alternative, the respondents request that, if the Tribunal allows the applicant to amend her Application, that they be allowed to amend their Response.

DECISION

6In 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.

7I am satisfied that the applicant should be permitted to amend her Application to include the additional particulars and the additional remedy sought. The additional particulars proposed by the applicant include further details regarding her employment after she returned to work in November 2009. In my view these particulars, including the particulars around the alleged incident of harassment (which is also described in the original Application) do not alter the subject matter of the Application but rather provide further clarification and context. The only allegation that is not explicitly raised in the original Application is that of harassment by one of the personal respondents but, in my view, it arises from the facts set out in the original Application.

8I am satisfied that the particulars provided about the Ministry of Labour's decision can be included in the amended Application. I don't accept the argument that it is irrelevant given that this decision is clearly about the wage dispute between the parties which is a principal issue in the Application. Ultimately, the significance of the Ministry of Labour's decision is an issue that the parties can argue at the appropriate time.

9The Request to add the claim for general damages, more properly characterised as monetary compensation for intangible losses arising out of the alleged discrimination, is allowed. This amendment is made without any determination by the Tribunal as to the appropriateness of the remedy and without prejudice to any position the respondent smay wish to take regarding the issue of remedies.

10I do not find the timing of the RFOP to be a reason to disallow the applicant's request. There is no indication that amending the Application at this time will prejudice the respondents in terms of being able to prepare for a future hearing.

11I am prepared to allow the respondents the opportunity to amend their Response. I am satisfied that as long as sufficient time is provided to the respondents to amend their Response previously filed in this matter, there will be no prejudice resulting from permitting the amendments to the Application.

12I order that the Application be amended accordingly. If the respondents wish to file an amended Response(s) as a result of this order, the respondents may do so within 21 days of the date of this Interim Decision.

13I am not seized of this matter.