HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Darlene Pazzano Applicant
-and-
Ontario Lotto and Gaming Corporation Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle Date: June 22, 2012 Citation: 2012 HRTO 1229 Indexed as: Pazzano v. Ontario Lotto and Gaming Corporation
WRITTEN SUBMISSIONS
Darlene Pazzano, Applicant Christine Lundy, Representative
Ontario Lotto and Gaming Corporation, Respondent No submissions
CAW Canada, Intervenor Jim Wood, Representative
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability.
2This Interim Decision addresses a Request by the Canadian Auto Workers' (CAW) Canada (the "union") to intervene in the Application. The union is the certified bargaining agent for the applicant's workplace.
3The union is seeking to intervene on the basis that it has an interest in the outcome of the litigation. The union seeks status as intervenor in this Application in order "to defend the interests of the union if need be."
4The Request to Intervene was delivered to the applicant as well as the respondent. Neither the applicant nor the respondent has provided a Response to the union's Request to Intervene and the time for doing so has now passed.
5While the union has not indicated what interests it may need to defend, in addition to monetary compensation from the respondent and other remedies, the applicant seeks an order placing her in a particular full time bargaining unit position and seeks consideration for holiday scheduling. If the Tribunal finds in favour of the applicant, the remedies ordered by the Tribunal could have a considerable impact on the union's bargaining unit members.
6In the circumstances I am satisfied that the union should be granted intervenor status.
7This Interim Decision also addresses the applicant's May 4, 2012 Request for an Order During Proceedings (RFOP) in which she seeks to amend her Application.
8The original Application was filed December 22, 2011 and includes allegations up to December 22, 2011(though it also references an allegation of discrimination December 29, 2011). Broadly stated, it includes allegations related to the applicant's interactions with the respondent whereby she sought placement in a particular full time position, but alleges that the employer advised her that it was outside her medical restrictions. In her Application, she alleges that the employer would not make this position available to her despite the fact that she no longer had medical restrictions on the work she could perform.
9In its Response, the respondent included allegations relating to its interactions with the applicant regarding the issue of medical information in December 2011. It also alleged that the applicant "has not participated in the Respondent's process for evaluating her restrictions and limitations since that time. To date, the Applicant's physician has not provided the Respondent with the required information." It stated that the full time position in question has not been filled "to date" and continues to be held open, pending the receipt of medical information from the applicant.
10The applicant filed a Reply on May 2, 2012, responding to, among other things, the respondent's statements about interaction between the parties in December 2011 and alleged that she has made repeated efforts to provide the required medical information. In her Reply, she made reference to the allegations contained in her RFOP.
11In her RFOP, the applicant seeks to amend her Application to include allegations relating to continued interactions from December 2011 to May 3, 2012 with the respondent regarding the issue of provision of medical information and her eligibility for certain work. Additionally, she alleges that the nature of the interaction with the respondent caused her to take an extended stress leave.
12In her RFOP, the applicant also seeks to amend the remedy requested, increasing the amount she seeks in respect of lost wages, also adding out of pocket expenses incurred in the absence of a benefit plan, an increased amount in respect of general damages, interest, and the restoration of full benefit coverage as if she had been working full time from September 1, 2011 as well as pension entitlement as if there had been no interruption in employment.
13The respondent has made no Response to the RFOP and the time for doing so has now passed.
14Rule 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".
15In determining requests to amend Applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed 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.
16The Request to amend the Application has arrived at a relatively early stage in these proceedings. The allegations made in the RFOP are timely, being made within one year of the alleged events. The nature of the allegations the applicant seeks to add are related to the allegations made in the original Application, dealing with the alleged ongoing interaction between the parties regarding medical information and her eligibility for certain work, as well as the alleged impact on her of these interactions. The amendments she seeks to make with respect to remedy relate to the additional allegations. The respondent has made no submissions and I find that if there is any prejudice to it, such prejudice can be addressed by permitting it to file further Response with regard to these allegations. In view of the above, the applicant's request to amend her Application by adding the allegations stated in the RFOP is allowed. In view of the inclusion of the new allegations, it is also appropriate to permit the applicant to amend the remedies she seeks.
Order
17The CAW Canada is added to this Application as an intervenor. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter.
18The extent of the union's participation in the hearing will be determined by the presiding Vice-chair or Member.
19The Application is hereby amended to include the allegations made in the applicants May 4, 2012 RFOP and to include her amended request for remedy.
20Should the respondents wish to respond to the amendments, they are directed to do so within 21 days of this Interim Decision.
21I am not seized of this matter.
Dated at Toronto, this 22nd day of June, 2012.
Signed by
Maureen Doyle Vice-chair