Anderson v. Stieber Berlach LLP, 2012 HRTO 1471

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Anderson Applicant

-and-

Stieber Berlach LLP Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: July 27, 2012 Citation: 2012 HRTO 1471 Indexed as: Anderson v. Stieber Berlach LLP

WRITTEN SUBMISSIONS

Andrea Anderson, Applicant Self-represented

Stieber Berlach LLP, Respondent William R. Gale, Counsel

Introduction

1This is an Application filed on December 31, 2010, under s. 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 on the basis of colour, disability and age. In her Application, the applicant indicates that she was employed by the respondent law firm from January 4 to August 11, 2010.

2The purpose of this Interim Decision is to address the applicant's three Requests for Orders During Proceedings to amend her Application, dated July 29 and September 19, 2011, and April 13, 2012.

Procedural Background

3On April 29, 2011, the applicant filed a Request for an Order During Proceedings ("Request") to defer her Application due to health reasons. On May 4, 2011, the respondent filed a Response, consenting to the Request to defer, and on May 24, 2011, the respondent filed a Response (Form 2) to the Application.

4In an Interim Decision dated June 14, 2011, 2011 HRTO 1151, the Tribunal determined that it was appropriate to hold the matter in abeyance for a period of six months, or until the applicant advised that she was ready to proceed.

5On June 22, 2011, the applicant filed a Request to re-activate her Application, and on June 23, 2011, the respondent filed a Response, consenting to the Request to re-activate.

6In an Interim Decision dated July 25, 2011, 2011 HRTO 1391, the Tribunal granted the applicant's request to proceed with her Application, and indicated that mediation would be scheduled.

7On July 29, 2011, the applicant filed a Request to amend her Application. In this Request, the applicant seeks to add the ground of family status and more information relating to disability. The applicant also filed a Statement of Delivery, confirming that her Request was delivered to the respondent. The respondent does not appear to have provided a Response to this Request, and the time for doing so has passed.

8On September 19, 2011, the applicant filed a second Request to amend her Application. In this Request, the applicant seeks to add the grounds of marital status and association with a person identified by a ground "i.e. Sex, Sexual Harassment (assumed but not known) relating to a Partner in another firm." On September 21, 2011, the respondent filed a Response to the applicant's second Request to amend her Application, indicating that it has no objection to the Request, but that it does not understand the Request, and that the applicant needs to clarify her Request.

9On October 11, 2011, the applicant filed a Reply to the respondent's Response to her Application.

10It appears that this matter proceeded to mediation on March 1, 2012, but was not resolved. On April 11, 2012, the Tribunal issued a Notice of Confirmation of Hearing. This matter is currently scheduled to be heard on October 9, 2012.

11On April 13, 2012, the applicant filed a third Request to amend her Application. In this Request, the applicant seeks to add more details regarding her disabilities and further investigations that she feels were carried out against her at the respondent. On May 9, 2012, the respondent filed a Response to the applicant's third Request to amend her Application, objecting to the applicant's Request.

12On May 17 and May 31, 2012, the applicant filed Requests for a Tribunal Ordered Inquiry, and on June 26, 2012, the respondent filed a Response to a Request for a Tribunal Ordered Inquiry.

13On July 3, 2012, the applicant filed a lengthy Request. The applicant indicates that the Request is to amend her Application, and for particulars and production. The Request appears to be primarily a Request for production.

14On July 20, 2012, the applicant filed another lengthy Request. Although the applicant indicates that the Request is to add a party and amend her Application, it appears to be a Request to add two third parties as respondents to her Application. It does not appear, however, that the applicant delivered the Request to the proposed third parties.

REQUESTS TO AMEND THE APPLICATION

15Rule 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".

16In 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 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.

17With respect to the applicant's June 29, 2011 Request to amend her Application to add the ground of family status, the applicant submits that, although facts about family status discrimination are included in her Application, where she refers to going to the airport to pick up her daughter, she mistakenly failed to check the box for family status in her Application. With respect to her Request to add more information relating to disability, the applicant submits that she has new information relating to her perceived conditions, which she includes in her Request along with some additional allegations.

18I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of family status, and further information and allegations relating to the ground of disability, as requested in her June 29, 2011 Request. The applicant made the Request at a relatively early stage in the proceedings, shortly after receipt of the respondent's Response to her Application, and within one year of the last alleged incident of discrimination set out in her Application (August 11, 2010). The applicant seeks to add the ground of family status based on allegations already set out in the Application, and the additional allegations related to the ground of disability also appear to be related to existing allegations in the Application concerning the respondent's treatment of the applicant. As the respondent does not appear to have filed a Response to this particular Request, there is no apparent prejudice to the respondent in granting the Request.

19In her September 19, 2011 Request to amend her Application, the applicant seeks to add the grounds of marital status and association with a person identified by a Code ground; however, the applicant does not explain in her Request how any allegations in her Application relate to either of these two grounds, nor does she appear to make any new allegations in her Request that relate to either of these two grounds. Although the respondent submits that it has no objection to the Request, it also submits that it does not know at this time whether it relies on any additional facts as it does not understand the Request. In the circumstances, as the applicant does not appear to have identified any allegations related to the proposed grounds of marital status or association with a person identified by a Code ground, the Request to amend the Application to add these grounds is denied.

20The applicant's Request, dated April 13, 2012, to amend her Application to add more details regarding her disabilities, and further investigations that she feels were carried out against her, is quite lengthy. In objecting to this Request, the respondent submits that it is neither a concise Request to amend one or more of the applicant's claims, nor a detailed outline of further facts in support of her original claims. The respondent submits that, rather, the Request is a mixture of speculation about events, people or other employers which has nothing or little to do with the respondent. The respondent submits that this Request to amend, if granted, would expand the Tribunal's inquiry beyond a complaint arising from the applicant's eight months with the respondent, into an unending maze of allegations involving other law firms that the applicant apparently worked for prior to her tenure with the respondent.

21With respect to timing, s. 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

22While s. 34(1) of the Code applies only to when a person may apply to the Tribunal, and not to when an applicant can seek amendments, s. 34 does set out the expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced: see Khokher v. Intercon Security Limited, 2011 HRTO 1493.

23The applicant's Request to amend her Application, dated April 13, 2012, is her third Request to amend her Application. The original Application, itself, contains a lengthy narrative of allegations. The amendments that the applicant proposes in this third Request appear to include a repetition of some of the allegations in her original Application, and new allegations relating to the time period of April 2010 and earlier, including incidents with a previous employer in 2008. It is not clear how these latter proposed allegations involving a previous employer are related in any way to the respondent. The applicant has also filed this third Request to amend her Application approximately two years, and more, after many of the incidents set out in the Request, and has failed to provide any explanation whatsoever for this significant delay in raising any new allegations. In my view, considering the nature of the proposed allegations, many of which would significantly expand the scope of the Application, and the late timing of the allegations being raised, it would not be fair, just and expeditious to grant the Request. The applicant's Request to amend her Application, dated April 13, 2012, is denied.

NEXT STEPS

24In light of the Tribunal's decision to grant the applicant's Request to amend her Application dated July 29, 2011, the respondent may file a revised Response (Form 2) to the Application within 30 days of the date of this Interim Decision.

25The Tribunal will issue a separate Case Assessment Direction with respect to the next steps in this matter.