Human Rights Tribunal of Ontario
Between:
Michael Trenholm Applicant
-and-
CBU Publications Ltd. Respondent
INTERIM DECISION
Adjudicator: Eric Whist Date: May 17, 2012 Citation: 2012 HRTO 1005 Indexed as: Trenholm v. CBU Publications Ltd.
1This Application was filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on April 29, 2011. The Application alleges discrimination in employment on the basis of age. This Interim Decision addresses the applicant’s Request for an Order During Proceedings (“RFOP”) filed on February 27, 2012 seeking to amend the Application.
2The Application alleges that on two occasions the respondent’s National Sales Manager made inappropriate and offensive comments to the applicant about his age. The Application also refers to this manager subjecting employees to an increasing number of abusive remarks, alleging that on one occasion he screamed at employees “you fuckers”. The Application alleges that the respondent and its management are causing considerable mental and physical fatigue and placing employees under extreme duress on a daily basis.
3The RFOP seeks to amend the Application by adding allegations about racist and sexist comments made in the respondent’s workplace and by adding the further ground of reprisal. The applicant submits in his RFOP that on June 16, 2012 (it would appear the applicant is referring to June 16, 2011) the respondent’s president went into a tirade when the applicant raised the fact that the president had come into the office wearing jeans after telling staff that denim was no longer permitted to be worn in in the office. The RFOP submits that after this incident the applicant began to document the conduct of staff and the employer. The RFOP submits that the applicant began to make audio recordings of comments made by others and the RFOP includes a transcription of some of the alleged comments that the applicant recorded many of which are of an overt sexual nature. The applicant identifies the persons making these comments by their first names. It appears these persons are fellow employees. The RFOP submits that the “vile nature of staff’s comments are a violation of my rights” and that “the employer deliberately failed to provide freedom from harassment in the workplace and the constant barrage or racial slurs and sexual comments made directly or indirectly clearly represent harassment as defined under the Ontario Human Rights Code”.
4The RFOP submits that the applicant was fired from his employment on November 25, 2012 (it would appear the applicant is referring to November 25, 2011). The applicant alleges that the termination of his employment constitutes reprisal under the Code and the Tribunal should consider this issue as part of the Application. .
5The RFOP also submits that the respondent was involved in an improper business practice. There is no indication that the applicant is alleging that this practice involves violations of the Code.
6The respondent filed a response to the RFOP on April 25, 2012. The respondent opposes the request to amend. It denies the applicant’s allegation of age discrimination and submits that until the applicant can prove his allegations of age discrimination the Tribunal should not consider any further allegations from the applicant. The respondent goes on to explain why it believes that the applicant’s allegations of age discrimination are without merit including explaining why it is of the view that the respondent has a persuasive case.
7It is noted that the parties participated in mediation on March 9, 2012 which was unsuccessful. The Application has not, as yet, been scheduled for a hearing.
ANALYSIS AND DECISION
8In 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 (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.
9The applicant’s request to amend the Application is allowed, in part. The request to add the termination of the applicant’s employment on the basis that it constitutes an act of reprisal is allowed. In my view this allegation is linked to the filing of the current Application. I am of the further view that adding this single allegation at this stage will not prejudice the respondents, or significantly delay the proceedings.
10The request to add allegations of sexual and racial harassment is denied. In my view these allegations do not directly arise or relate to the allegations in the Application, namely that a manager made two offensive comments to the applicant about his age. These allegations involve different grounds of discrimination, different alleged perpetrators and recipients and occur at a different period of time. The addition of these allegations would, in my view, unduly broaden the scope of the hearing and would require the respondent to undertake a substantive investigation of these allegations in order to properly respond. In my view adding these allegations would not be fair, just or expeditious.
11I further note that the RFOP referred to a June 16, 2011 incident involving comments made by the respondent’s president about jeans and an alleged improper business practice of the respondent. I have not considered whether the Application should be amended to include these allegations given that they have not