Thompson v. Liquor Control Board of Ontario, 2011 HRTO 816

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

Date: April 26, 2011

Citation: 2011 HRTO 816

Indexed as: Thompson v. Liquor Control Board of Ontario

WRITTEN SUBMISSIONS

Lee Thompson, Applicant ) Self-represented )

Liquor Control Board of Ontario, Respondent ) Justin Diggle, Counsel

1This Application was 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”). The Application alleges discrimination in employment on the basis of race, colour, ancestry, disability, family status as well as reprisal.

2This Interim Decision addresses issues arising out of the particulars the applicant filed on February 14, 2011 and the applicant’s March 14, 2011 Request to amend his Application.

BACKGROUND

3The applicant has been an employee of the LCBO (the “corporate respondent”) 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 corporate respondent, principally in relation to his efforts to be transferred to a LCBO location closer to his home in Brampton.

4In an Interim Decision dated September 11, 2009, 2009 HRTO 1457, the Tribunal dismissed the Application against a number of personal respondents. In an Interim Decision dated April 8, 2010, 2010 HRTO 779, the Tribunal dismissed all the 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.

5In an Interim Decision dated February 1, 2011, 2011 HRTO 223, the Tribunal considered the applicant’s October 4, 2010 Request for an Order During Proceedings (“RFOP”) to amend the Application to include three further allegations. These were:

The applicant has been injured since June 2008 with chronic right Si Axonal damage and he alleges 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 a request that the applicant be transferred but the LCBO has failed to respond to this request which would allow the applicant to avoid a substantial commute to work. (The “Transfer Allegation”)

The applicant alleges he has been denied Acting Manager shifts on Sundays as a result of a 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 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 requests not to work night shifts in order to assist him in meeting his commitments to his family. (The “Accommodation Allegation”).

6The February 1, 2011 Interim Decision allowed the applicant’s Request to amend his Application to include the Transfer Allegation on the grounds that these allegations flow from the continuum of facts of the original Application. The Tribunal dismissed the Request to amend to add the other allegations. The applicant was directed to provide further particulars in relation to his Transfer Allegation.

Request to Dismiss Portion of the Applicant’s Particulars

7On February 14, 2011 the applicant filed particulars in response to the Tribunal’s Interim Decision. The particulars included nine paragraphs (numbered 1 through 9) of particulars under the heading “Transfer Allegation” and 13 paragraphs (numbered 10 through 22) under the heading “Accommodation Allegation”. The particulars in paragraphs 10-22 relate to the allegations which were dismissed in the February 1, 2011 Interim Decision.

8On March 2, 2011 the corporate respondent filed submissions asking that paragraphs 10-22 be dismissed on the grounds that they relate to allegations which the Tribunal ruled would not be added to the Application.

9I do not find the applicant’s explanation for including the additional allegations in paragraphs 10-22 support granting a further amendment of the Application. I remain of the view that these allegations do not flow from or form part of the continuum of facts of the original Application and would unduly affect the hearing process. In my view the fact that the applicant characterizes the corporate respondent’s actions in relation to the Sunday Allegation as reprisal and alleges the corporate respondent has now taken actions in relation to his Accommodation Allegation is not sufficient reason to grant what is effectively a renewed request to amend the Application.

10As I noted in my February 1, 2011 Interim Decision the issues raised in the Application are already numerous, complex and relate to multiple grounds under the Code and parameters need to be clearly drawn around what issues will be the subject of a hearing. Adding further allegations will unnecessarily complicate and lengthen the hearing and compromise the opportunity for the parties to participate in a just, fair and expeditious hearing process.

Amended Response

11The corporate respondent includes in its March 2, 2011 submissions, an amended Response to the applicant’s Transfer Allegation. The amended Response is accepted.

Deferral

12The corporate respondent states that the applicant has a current grievance that claims the corporate respondent has failed to appropriately accommodate the injury the applicant describes in his Transfer Allegation. According to the corporate respondent, this matter is presently waiting to proceed to a Stage 3 meeting as part of the grievance process. The corporate respondent states that it will file a request with the Tribunal to have consideration of the Transfer Allegation deferred pending the conclusion of the grievance and arbitration process. The Tribunal does not defer consideration of parts of an Application. If the corporate respondent decides to proceed with a request to defer the Application, it is directed to make this request within 21 days of the date of this decision.

March 14, 2011 Request to Amend

13On March 14, 2011 the applicant filed an RFOP requesting that the Application be amended to include two further allegations. The applicant submits the corporate respondent refused to continue his child care access arrangement and refused to allow the applicant to work Friday days so he can take his mother to needed medical appointments.

14The corporate respondent opposes the Request to amend the Application. The corporate respondent submits the applicant’s child access allegations are a work scheduling issue and do not flow from or form part of the continuum of the facts of the original Application or provide useful context for considering the legal issues in the case.

15The corporate respondent further submits the applicant signed Minutes of Settlement and a full and final release in July 2006 which resolved the child care issues and that allowing these allegations to be added to the Application would be an abuse of process.

16The corporate respondent submits that the request to work Friday days is also a work scheduling issue that does not directly relate to the Application’s central interest, that the applicant be allowed to transfer work locations.

17The March 14 Request to Amend the Application is dismissed. The Application focuses on the applicant’s requests to transfer stores and the corporate respondent’s responses to these requests. The allegations regarding the applicant’s child access and working Fridays focus on disputes over special work scheduling arrangements which do not, in my view, flow from or sufficiently relate to the facts of the original Application and the applicant’s interest in a transfer.

18I am of the further view that allowing the proposed amendments would unnecessarily add to the length of the hearing and unduly complicate proceedings. The corporate respondent and applicant clearly have an ongoing relationship with a number of disputes which are, to some degree, related. However, the present Application cannot be a vehicle for effectively addressing all of these disputes and must remain focused on the original allegations related to the applicant’s request to transfer in order to allow a fair just and expeditious hearing to take place.

Applicant’s Request for Particulars

19As part of his March 14, 2011 RFOP the applicant requests further particulars from the corporate respondent. He states:

I believe the LCBO transfer policy is neither clear open transparent nor equitable. As a result I am requesting all information with respect to transfer requests that were made in the last 10 years including names of individuals and reasons for transfer as well as the geographic areas the individuals were transferred to and from….Also I would like a copy of the schedules from store 1 and 362 for the lat [sic] six years store [sic] .

20I agree with the corporate respondent that this Request seeks the production of documents rather than particulars. Rule 16 of the Tribunal’s Rules of Procedure describes the process by which parties disclose and deliver arguably relevant documents in their possession. This process does not begin until after the Tribunal issues the Notice of Confirmation of Hearing to the parties. Consequently, the applicant’s request is premature and should be made directly to the respondent under the process outlined in Rule 16.

21I am not seized of this matter