HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marie Karpenko
Applicant
-and-
Green Shield Canada
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Karpenko v. Green Shield Canada
WRITTEN SUBMISSIONS
Marie Karpenko, Applicant
Self-represented
Green Shield Canada, Respondent
Paul A. Young, Counsel
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. This Interim Decision deals with the issue of whether the applicant will be permitted to rely upon additional allegations to those that were originally contained in her Application as filed and gives directions for the hearing.
2The Application relates to the applicant’s failure to be hired by the respondent, following an interview on August 12, 2010. She says that this was for discriminatory reasons, as explained below. The respondent asserts that she did not receive a second interview solely because of her scores in the interview, conducted in accordance with the respondent’s policies, and that she was 17th out of 18 candidates, where the top 8 candidates received a second interview.
3The applicant filed this Application on January 18, 2011. The Application as originally filed alleges that the applicant was not given a second interview because of her association with an employee of the respondent (the “other employee”). It alleges that she was asked during the interview whether she knew the other employee, and that when she said she did, further interview questions were not asked. It alleges that the other employee has had conflict with one of the interviewers.
4On June 14, 2011, the Tribunal issued a Notice of Intent to Dismiss. It stated that it appeared that the Application did not raise an issue the Tribunal has the power to resolve because the applicant had not described how the respondent’s behaviour was related to relationship, association or dealings with a person or persons identified by a prohibited ground. The Notice stated that the Application may be dismissed if the applicant did not establish that the Application fell within the Tribunal’s jurisdiction.
5The applicant submitted various documentation in response to the Notice of Intent to Dismiss, including a Request to amend her Application. The applicant clarified her allegations to suggest that she was discriminated against contrary to the Code in two ways. First, she alleged that the employer had a conflict with the other employee because she had a large number of absences, and alleged that was connected with the other employee’s disability, and her association with this person was why she was not given a second interview. Second, the applicant alleged that she was asked during the interview whether she had intentions of marriage or having a family in the near future and that was a factor in the decision.
6As a result of the further information provided by the applicant, the Tribunal found, in an Interim Decision dated August 29, 2011, that it was not “plain and obvious” that the Application was outside the Tribunal’s jurisdiction and directed that the Application be delivered to the respondent. It also permitted the amendment of the application: 2011 HRTO 1611.
7In its Response, the respondent objected that the amendment had been made without its participation. In a Case Assessment Direction dated June 7, 2012, the Tribunal apologized for the error in making this decision prior to receiving submissions from the respondent and invited submissions on whether the amendments should remain part of the Application.
8The respondent argues, first, that the Tribunal had no jurisdiction to make the amendments because the Application had not yet been delivered to the respondent and it did not have the opportunity to make submissions. It suggests that in these circumstances, the Tribunal had no jurisdiction to make the order requested and the respondent was denied natural justice. Second, it argues that the Application, with the amendments, was not delivered to the respondent until more than 12 months after the interview, and it destroys interview notes after six months, and that therefore the amendment should therefore not be granted because it will lead to prejudice.
9I will consider the Request to Amend as though the previous Interim Decision had not been made, and rule on whether the amendment is appropriate. However, there is no basis to refuse the requested amendments. The amendments were requested within the one year time limit, and before the Application was delivered to the respondent. Had the applicant made all the allegations in a new Application filed on the date she requested the amendments – April 10, 2011 – she would have been entitled to do so without leave of the Tribunal, and the result should be no different in the circumstances.
10It is often the case that Applications filed within the one-year time limit in s. 34 are delivered to respondents outside that time limit, as a result of the Tribunal’s initial triage process, which ensures that Applications are complete and appear to be within jurisdiction before respondents are required to respond. The time limit applies to the filing of the Application, not its delivery. It is also often the case that applicants, particularly those who are self-represented, clarify their allegations through the Tribunal’s completeness and Notice of Intent to Dismiss process. The applicant should not be precluded from bringing a timely Application because of the respondent’s policy to only retain interview notes for six months. The requested amendments are appropriate, make allegations within the meaning of the Code, there is no prejudice to the respondent as a result of their timing within the meaning of the Tribunal’s case law, and they are therefore granted.
11As there is not agreement by both parties to mediation, this Application will be scheduled for a one-day hearing. In view of the numerous allegations made, many of which appear not to relate to the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/