HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jason Foster
Applicant
-and-
Domclean Limited and R.E. Gilmore Investments Corporation – Gilmore Global
Respondents
Interim Decision
Adjudicator: Ena Chadha
Indexed as: Foster v. Domclean Limited
WRITTEN SUBMISSIONS
Jason Foster, Applicant
Self-represented
Domclean Limited, Respondent
Robert J. Atkinson, Counsel
Gilmore Investments Corporation – Gilmore Global, Respondent
Colleen Dunlop, Counsel
1This Application was filed on January 10, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“Code”) alleging discrimination and reprisal with respect to employment on the basis of family status.
2The applicant’s narrative alleges that both he and his wife worked for the same employer, Domclean Limited (“Domclean”), a janitorial company, and were assigned to work as cleaners at Gilmore Investments Corporation – Gilmore Global (“Gilmore”). The applicant alleges that upon his return from parental leave on January 10, 2011, a Domclean supervisor told him that he was no longer permitted to work at Gilmore. The Domclean supervisor allegedly informed the applicant that the Gilmore facilities manager directed that the applicant could no longer work at Gilmore due to the applicant’s wife alleged security breaches.
3The applicant alleges that he was held responsible for his wife’s alleged misconduct while he was on parental leave. The applicant alleges that when he asked if he would be assigned elsewhere he was told that head office would make that decision. The applicant alleges that he was not reassigned and on January 14, 2011 received a letter of termination dated January 11, 2011. Along with his Application, the applicant provided a copy of a Ministry of Labour Employment Standards Decision, dated October 24, 2011, awarding the applicant termination pay in lieu of notice and denying the applicant’s allegations of parental leave reprisal.
4The respondent Domclean filed a Response on April 10, 2012, refuting the allegations of discrimination and reprisal. Domclean requests that the Tribunal dismiss the Application because the substance of the Application has been appropriately dealt with in another proceeding pursuant to section 45.1 of the Code. Domclean submits that the Decision issued under the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”) addressed the issues of termination pay, parental leave and the applicant’s allegations of discrimination and reprisal on the ground of family status. In addition, Domclean asserts that the applicant’s allegations are untimely and also requests that the Application be dismissed under Rule 19A as having no reasonable prospect of success.
5The respondent Gilmore filed a Response on April 11, 2012 denying any employment relationship with the applicant. Gilmore alleges that it advised Domclean that it would not permit the applicant and his wife to clean its facility as a consequence of security breaches during periods of time that either or both the applicant and his wife were working. Gilmore submits that it is not a proper respondent to the Application and requests that it be removed as a respondent party. Gilmore supports Domcleans’ request that the Application be dismissed pursuant to section 45.1 of the Code.
6On May 7, 2012, the applicant filed a Reply, wherein he asserts the Application is timely because, although he was removed from Gilmore on January 10, 2011, he was only notified of his dismissal from Domclean by way of a letter of termination received on January 14, 2011. The applicant filed a request for an order during proceedings seeking that the Application be amended to cite the grounds of “marital status” and “association with a person identified by a Code-ground”. The applicant submits that he believed the ground of family status, which he originally cited, included marital status and that his Application already provided the details of the marital status discrimination. The applicant asserts that he was also discriminated against because of his wife, who allegedly was subjected to various Code violations. Along with his request, the applicant provided excerpts of his wife’s narrative, which appears to allege discrimination, harassment and reprisal on the basis of sex.
7Gilmore opposes the applicant’s request to amend the Application, most specifically with respect to citing association with a person identified by a Code-ground. Gilmore submits that the proposed addition of this ground raises new allegations in relation to the applicant’s wife, matters which Gilmore is not privy to and which are not related to the substance of the applicant’s original Application.
8Domclean also opposes the applicant’s request to amend the Application. Domclean contends that the proposed amendments entirely change the basis of the original Application and seeks to introduce new facts based on grounds of sex which were never in the original claim.
PRELIMINARY REQUESTS
Timeliness
9Domclean asserts that the Application is untimely. The Application was filed on January 10, 2012 and the applicant noted in Form 1 that the last incident of discrimination was January 11, 2011, presumably the date of the letter of termination. In his Reply, the applicant alleges that it was only on January 14, 2011 when he received the dismissal letter that he learned that his employment was actually terminated and that he was not being moved to another site. Given this timeline, it appears the Application was filed within the one-year limit under section 34(1) of the Code and, as such, there is no basis to dismiss the Application for delay.
Summary Hearing
10Domclean requested a summary hearing on the basis that the Application has no reasonable prospect of success. This request is denied, without reasons, in accordance with Rule 19A.5.
Request to Remove Gilmore
11Gilmore requests that it be removed as a respondent party from this Application because it does not have an employment relationship with the applicant and, therefore, the Tribunal does not have jurisdiction over it.
12Pursuant to Rule 1.7 (b) of the Tribunal’s Rules, the Tribunal has the power to add or remove a party.
13I find that it is not plain and obvious that the Tribunal lacks jurisidiction over Gilmore. To make out a prima facie case of discrimination, an applicant must demonstrate a link between a respondent’s alleged actions and a Code ground (for example, age) and social area (for example, employment). Having reviewed the Application, and without making any findings of fact, the applicant has raised allegations against Gilmore on the basis of certain ground(s) under the Code and he appears to assert a nexus in reference to the comments and decision of the Gilmore facilities manager between the ground(s) and his concerns of workplace discrimination.
14The absence of a direct employment relationship is not necessarily determinative of whether the alleged circumstances come within the purview of section 5 because of the broad language of the provision which provides for a right to equal treatment “with respect to” employment. A diverse array of employment-type situations, including pre- and post-employment, temporary contracts, non-traditional work arrangements, and even the behaviour of guests, clients and patrons in the workplace, have been held to be within the ambit of “with respect to employment”: see Loomba v. Home Depot Canada, 2010 HRTO 1434 and the cited cases therein.
15As such, without making any findings of fact, I am not satisfied that it is plain and obvious that the applicant’s allegations regarding the actions and decisions of the Gilmore facilities manager do not come within the meaning of “with respect to employment”. Accordingly, the Tribunal will continue to proceed with the Application as against Gilmore as a respondent party. This is not a final decision regarding the Tribunal’s jurisdiction in respect of this aspect of the Application. The adjudicator assigned to hear the case may re-visit this question as part of the exercise of discretion to manage the case.
Request to Amend
16Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”
17In determining requests to amend Applications filed 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.
18I am satisfied that the applicant should be permitted to amend the Application to add the ground of marital status because the allegations in relation to this ground do not raise new concerns distinct from the original narrative. The applicant’s concerns regarding his marital relationship were described in the original narrative and noted in Form 1A. The proposed addition of marital status clarifies the alleged discrimination in the narrative and does not alter the subject matter of the original case.
19However, I decline to allow the applicant to amend the Application to include allegations regarding discrimination because of association with a person identified by a Code-ground. The applicant appears to seek to introduce new allegations with respect to concerns of gender-based discrimination, harassment and reprisal allegedly experienced by his wife. Unlike the marital status allegations, which flow from the existing narrative, the new matters of sex harassment which the applicant now seeks to add do not arise out of the original Application. In addition, the applicant has not provided an explanation for his failure to include the allegations of discrimination because of association with a person identified by a Code-ground in his original Application.
20Based on the excerpts provided by the applicant, it appears that some of the new proposed allegations arise out of events from the fall or earlier of 2010, over a year prior to the events alleged in the applicant’s Application. The allegations of association with a person identified by a Code-ground not only expand the scope of the original allegations by raising matters that are entirely distinct from the original family status/marital status concerns, but also appear to impugn individuals not identified in, or related to, the original Application. I find that the applicant’s request would significantly complicate and protract the original proceedings and, accordingly, it would be unfair to the respondents to allow this amendment.
Section 45.1
21There appears to be a preliminary issue as to whether the Application should be dismissed, in whole or in part, because its substance was appropriately dealt with in another proceeding, specifically, the ESA Decision with respect to termination pay and allegations regarding the applicant’s parental leave.
22In this circumstances, the Tribunal directs that a preliminary hearing will be scheduled with respect to section 45.1 of the Code and seeks the parties’ submissions in this regard. The Tribunal directs the parties’ attention to the case law which has held that an ESA investigation and decision by an Employment Standards Officer is a “proceeding” within the meaning of section 45.1 of the Code and adopting and applying the principles articulated by the Supreme Court of Canada in the decision of British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52: see for example Pinheiro v. Maritz Canada, 2012 HRTO 540; Okoduwa v. Husky Injection Molding Systems Ltd., 2012 HRTO 443; and Rampersaud v. Primary Response Inc., 2011 HRTO 2172.
ORDERS
23The Tribunal orders as follows:
i. The respondent Domclean’s request to dismiss the Application because of delay is denied;
ii. The respondent Domclean’s request for a summary hearing of the Application is denied;
iii. The respondent Gilmore’s request to be removed from the Application is denied;
iv. The applicant’s request to amend the Application to add discrimination because of association with a person identified by a Code-ground is denied;
v. The applicant’s request to amend the Application to add the ground of marital status is granted;
vi. The respondents are required to file an amended Response within 35 days of the date of this Interim Decision and are required to set out their positions regarding whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code;
vii. The applicant is required to file an amended Reply within 14 days of receipt of the amended Responses and is required to set out his position regarding whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code; and
viii. The Registrar will schedule a two hour conference call for the purpose of hearing submissions on the issue of whether all or part of the Application should be dismissed on the basis of section 45.1 of the Code.
24I am not seized of this matter.
Dated at Toronto, this 21st day of June, 2012.
Signed by
Ena Chadha
Vice-chair```