HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Trina Picard

Applicant

-and-

Nails Plus by Nicole and Nichole Chartrand

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: June 26, 2012

Citation: 2012 HRTO 1252

Indexed as: Picard v. Nails Plus by Nicole

WRITTEN SUBMISSIONS

Trina Picard, Applicant ) Lori Mishibinijima, Counsel

Nails Plus by Nicole and ) Peter Doucet, Counsel Nichole Chartrand, Respondents )

INTRODUCTION

1The applicant filed this Application on July 12, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of disability. The Application was originally filed as against only the personal respondent, the owner of the nail salon where the applicant worked.

2The applicant indicates that she has ulcerative colitis disease. The applicant alleged that, after her maternity leave, she advised her employer that, because of her disability, she required additional washroom breaks and that, in order to protect her immune system, sick clients should be asked to wear masks. The applicant alleges that her employer declined to accommodate her health-related needs and refused to return her to work because of her disease.

3The personal respondent filed a Form 2 Response on August 22, 2011, denying the allegations of disability discrimination. The respondent alleged that, upon the end of her maternity leave, the applicant demanded that, because of her child care arrangements, she be returned to work on a different schedule, that she be given a receptionist position, which was a job that did not exist at the salon, and that clients be directed to wear masks. The respondent alleged that the applicant chose not to return to work and asked for her severance pay. The respondent asserts that the applicant’s demands imposed undue hardship.

4The applicant filed a Reply on September 12, 2011.

BACKGROUND

5On October 11, 2011, the respondent filed a Request for an Order During Proceeding seeking production of documents from the applicant. By way of Interim Decision 2012 HRTO 313, the Tribunal denied the respondent’s request for production as premature.

6On November 24, 2011, the respondent wrote to the Tribunal and provided a copy of a Ministry of Labour Employment Standards Decision dated November 16, 2011. The respondent stated that the Employment Standards Decision was submitted as a supplement to her Form 2 Response.

7The respondent took the position that the issues outlined in the Employment Standards Decision are subject to the doctrine of res judicata. The Employment Standards Decision stated that, while the Employment Standards Officer could not deal with the issue of accommodating the applicant’s medical issues, the applicant’s claim for severance pay and pregnancy leave reprisal were denied.

8On January 16, 2012, the respondent copied the Tribunal on correspondence sent to counsel for the applicant. The letter summarizes the content of communications between counsel for the parties. The letter notes that applicant informed the respondent of her intention to amend the Application to include maternity and/or family status.

REQUEST TO AMEND APPLICATION

9On April 3, 2012, counsel for the applicant filed a Request for an Order During Proceedings (“Request”) seeking to amend the Application. The applicant asks to make the following amendments to the Application:

1.) add the corporate respondent, Nails Plus by Nicole;

2.) add the ground of family status and the details of the alleged family status discrimination;

3.) add the ground of sex (pregnancy) and the details of the alleged pregnancy discrimination; and

4.) correct/add details with respect to remedial claim to reflect special damages, general damages, interests, public interest remedy and a specific non-monetary remedy.

10On April 23, 2012, the respondent filed submissions opposing the applicant’s Request on the basis that considerable expense and effort was undertaken to prepare the response to the Application as it was originally framed. The respondent contends that the proposed amendments entirely change the basis of the original Application and seeks to introduce new facts based on grounds of sex and family status which were never in the original claim. The respondent asserts that she will now be put to duplicate expense to investigate and respond to the new allegations and, therefore, the Tribunal should order the applicant to pay the costs to re-respond.

Case Assessment Directions Regarding Request to Amend

11On May 16, 2012, the Tribunal issued a Case Assessment Direction indicating that it required clarification with respect to the whether the applicant was seeking to add the corporate respondent, Nails Plus by Nicole, in addition to the personal respondent or in replace of the personal respondent.

12The Tribunal directed the applicant to file submissions in response to this issue and address the principles as set out in Smyth v. Toronto Police Services, 2009 HRTO 1513, with respect to adding respondent parties. The Tribunal further directed the personal respondent and proposed respondent to file reply submissions addressing the applicant’s position.

13On May 30, 2012, the applicant filed written submissions clarifying that she seeks to add the corporate respondent to the Application in addition to the personal respondent. The applicant submits that this addition of the corporate respondent poses no prejudice to the corporate respondent or personal respondent.

14The respondent and proposed corporate respondent did not file submissions and the timeline for doing so has elapsed.

ANALYSIS & DECISION

15For the reasons that follow and without deciding the factual issues, I find that the requests to amend the Application should be granted.

16Rule 1.7(b) of the Tribunal’s Rules of Procedure (“Rules”) states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add a party. Tribunal jurisprudence has articulated the following factors with respect to adding a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

See Smyth v. Toronto Police Services, 2009 HRTO 1513

17The respondent did not specifically address the request to add the corporate respondent.

18Based on the foregoing and without deciding the issues, it appears that it would be fair to add the proposed corporate respondent. The applicant alleges that her employment with Nails Plus by Nicole was terminated because of the personal respondent’s lack of accommodation with respect to scheduling and treatment of clients on the basis of prohibited grounds under the Code. I am satisfied that there are facts alleged by the applicant, which if proven and subject to the defence by the proposed corporate respondent, could lead to a finding that the corporate respondent is responsible for the alleged violation of the applicant’s rights. I find that no prejudice exists such that it would be unfair to require the corporate respondent to participate in the proceeding as a respondent. As such, the applicant’s request to add corporate respondent is granted.

19Rule 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.”

20In 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.

21I am satisfied that the applicant should be permitted to amend the Application to add the grounds of family status and sex because these allegations do not raise new concerns distinct from the original narrative because the pregnancy-related allegations were described by the applicant in the original narrative. The Response filed by the personal respondent also relied on certain alleged facts regarding the applicant’s pregnancy leave in denying the discrimination. The proposed addition of family status and sex clarifies some of the alleged discrimination in the narrative and does not alter the subject matter of the original narrative. Further, the respondent’s January correspondence indicates that the respondent was notified of the applicant’s intentions to amend within one year from last incident of alleged discrimination and, consequently, there does not appear to be issues of timeliness.

22Although the respondent raises concerns with respect to expense and effort with respect to responding to the proposed amendments, no issues of prejudice in regards to hampering the respondent’s ability to defend against the allegations.

23I do not agree with the respondent that the proposed amendments significantly broaden the scope of the Application. The proposed amendments simply clarify the cause of action and particularize claims as alleged in the original narrative against the respondent. As noted above, I find that the essence of the applicant’s request to amend the grounds and details of the allegations to include sex and family is to elaborate on her concerns as noted in the original narrative in relation to her pregnancy. It is noteworthy that while the original Application only cited the ground of disability, both parties included details of the applicant’s pregnancy in their pleadings.

24In previous decisions, the Tribunal has allowed amendments to Applications, including remedial claims, prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050.

25I am satisfied that the applicant should be permitted to amend the Application to clarify the remedies claims. There is no dispute that the applicant was self-represented when she filed her Application. The remedial amendments proposed by the applicant simply specify the exact type of remedies being sought and explain the basis for the financial compensation claimed.

26Accordingly, the applicant’s request to add the corporate respondent and amend the Application is granted. The amendments are made without any determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and without prejudice to any position the respondents may wish to take regarding these issues.

Res judicata

27As previously noted, the respondent raised concerns with respect to res judicata arising out of the Employment Standards decision with respect to the applicant’s claim with respect to severance and pregnancy leave reprisal. It appears that the respondent is raising concerns with respect to re-litigation and is arguing that the substance of the Application has been appropriately dealt with in another proceeding as within the meaning of section 45.1 of the Code.

28In light of the amendment to include family status and sex, there appears to be preliminary issues as to res judicata and whether the Application should be dismissed, in whole or in part, because its substance was appropriately dealt with in another proceeding, specifically, a claim under the Employment Standards Act, 2000, S.O. 2000, c.41 (“ESA”) with respect to severance pay and leaves of absence.

29In these circumstances, the Tribunal directs that a preliminary hearing will be scheduled with respect to the issues of res judicata and section 45.1 of the Code. 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.

ORDER

30The Tribunal orders as follows:

i. The corporate respondent, Nails Plus by Nicole, is added to the Application and the style of cause is amended accordingly;

ii. The Application is amended to add the grounds of family status and sex and to add the details of these allegations as set out in the applicant’s April 3, 2012 Request;

iii. The Application is amended with respect to the financial and public interest remedies as set out in the applicant’s April 3, 2012 Request;

iv. The corporate respondent is directed to file a Form 2 Response within 35 days of the date of this Interim Decision and to specifically address the issue of res judicata and whether all or part of the Application should be dismissed pursuant to section 45.1 of the Code, on the basis that the substance of the Application already has been appropriately dealt with by the Employment Standards Officer’s decision;

v. The personal respondent may file an amended Response within 35 days of the date of this Interim Decision and may also provide any additional submissions with respect to the issues of res judicata and section 45.1 of the Code;

vi. The applicant is required to file an amended Reply within 21 days of receipt of the Response(s) and is required to file written submissions with respect to the issues of res judicata and section 45.1 of the Code; and

vii. The Registrar will schedule a two hour conference call for the purpose of hearing submissions on the issues of res judicata and whether all or part of the Application should be dismissed on the basis of section 45.1 of the Code.

31I am not seized of this matter.