Pazhaidam v. North York General Hospital, 2012 HRTO 1562

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cyril Pazhaidam

Applicant

-and-

North York General Hospital and Service Employees International Union, Local 1

Respondents

INTERIM DECISION

Adjudicator: Ian R. Mackenzie

Date: August 14, 2012

Citation: 2012 HRTO 1562

Indexed as: Pazhaidam v. North York General Hospital

WRITTEN SUBMISSIONS

Cyril Pazhaidam, Applicant

Ron Franklin, Counsel

Introduction

1Cyril Pazhaidam filed an Application 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 on the basis of disability. The applicant has filed a Request for an Order During a Proceeding (RFOP) to amend his Application. The respondents did not provide any submissions in reply and the deadline for so doing has now passed.

2The Application was filed on November 17, 2009. At the time that he filed the Application, the applicant was not represented. Sometime after filing his Application and up until May of 2011, the applicant was represented. He retained new counsel in September of 2011. The hearing of the Application was originally scheduled for October 3 and 4, 2011. A number of procedural issues were raised at the commencement of the hearing, including a request by the applicant to amend the allegations contained in his Application.

3I issued an Interim Decision addressing the procedural issues, including the request to amend the Application on February 21, 2012 (2012 HRTO 363).

4On July 17, 2012, the applicant filed this RFOP requesting further amendments to his Application.

request for amendment

5The request relates solely to the remedies sought in the Application. In the original Application, the applicant requested the following remedies:

a) Pain and suffering: $75,000;

b) Loss of dignity and respect: $75,000;

c) Loss of benefits, pension and seniority: $20,000

d) Reimbursement of union dues and pain caused by the union: $20,000

e) Return to full-time status as of May 2008;

f) Changes to organizational policies on how injured workers are handled;

g) Transparency within the bargaining unit to allow injured workers to transfer to an appropriate position;

h) Training for the respondents on the rights of injured workers; and

i) Letter of apology to the applicant and to past and present employees who have been affected.

6The applicant requested the following amendments to the requested remedies in his Application:

a) Compensation for the violation of his human rights, for injury to his dignity, self-respect and self-esteem and for the mental anguish he has experienced in the amount of $75,000;

b) North York General Hospital (NYGH) to compensate him for wages, medical, dental, pension, life and any other benefits or compensation that he lost as a result of the discrimination he was subjected to and in an amount to be quantified if, and when, liability is established;

c) Reinstatement to a full-time position similar to the full-time cleaner position he applied for on or around September of 2009;

d) A letter of apology for the discrimination he was subjected to;

e) An order requiring NYGH to retain a consultant with expertise in human rights at its own expense and to conduct an audit of its organizational policies, programs and procedures as they pertain to the accommodation of employees with disabilities; and

f) An order requiring NYGH to retain a consultant to conduct training or otherwise address any educational gaps identified in the audit, as described above.

submissions

7The applicant submitted that he was filing this RFOP to clarify the remedies sought in his Application. He stated that he was seeking to amend in good faith and for no improper purpose. He also submitted that the respondents will not suffer any prejudice if the amendments are allowed and there will be no adverse impact on the course of the hearing.

8The applicant relied on Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2 which have set out the following factors for Tribunals in considering whether to exercise their discretion to allow an amendment of an Application:

• Whether the amendment would occasion actual prejudice (or apparent prejudice) to the other party;

• Fairness;

• The conduct of the party seeking the amendment;

• The impact of the proposed amendment on the course of the hearing and any other parties;

• The stage at which the request is made; and

• The nature of the amendment;

9The applicant relied on Wozenilek where the Tribunal found that the new remedies requested were reasonably connected to the original allegations (para. 6). The applicant also referred me to Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Picard v. Nails Plus by Nicole, 2012 HRTO 1252 where the Tribunal found that the requested amendments were clarifications of remedies contained in the original applications.

Decision

10The applicant is seeking to amend the remedies sought in his Application. I have identified the following differences between the original remedies sought and the proposed remedies:

a. A removal of the separate $75,000 claims for pain and suffering and injury to dignity each, to one claim for $75,000 for damages for the breach of his human rights, injury to his dignity, self-respect, self-esteem and mental anguish;

b. Compensation for lost wages and benefits, in an amount to be quantified (in the original Application there was no mention of lost wages and the amount for lost benefits was set at $20,000);

c. Reinstatement to a full-time position similar to the full-time cleaner position (the original Application asked for reinstatement to full-time status);

d. Removal of the request for reimbursement of union dues and damages as against the union respondent of $20,000;

e. Removal of the request for transparency within the bargaining unit to allow injured workers to transfer to an appropriate position;

f. The requests for changes to organizational policies relating to injured workers has been changed to a request for an order requiring a consultant to conduct an audit of organizational policies, programs and procedures related to the accommodation of employees with disabilities; and

g. The request for training has been changed to a request for an order requiring a consultant to conduct necessary training.

11In the earlier Interim Decision in this proceeding (2012 HRTO 363), I set out the approach taken by the Tribunal in exercising its discretion to allow an amendment of an Application, at paras. 25 and 28:

The Tribunal has permitted amendments to applications, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. See Dube v. Canadian Career College, 2008 HRTO 336 and B.M. v. Cambridge (City), 2009 HRTO 954.

In Odell, the Board of Inquiry set out the following useful criteria for determining whether to exercise discretion to amend an Application:

• Will the amendments cause actual prejudice to the other party;

• Fairness;

• The conduct of the party seeking the amendment; and

• The impact of the proposed amendment on the course of the hearing.

12Although the applicant was self-represented when he initially filed his Application, he has been represented at various times since then. In addition, he was represented when he made a previous request to amend the Application in October of 2011 and continues to be represented by the same counsel. The hearing on the merits of the Application is scheduled for September 19, 2012. The request to amend the remedies sought is therefore at a late stage of the proceeding.

13The request of an applicant to remove a requested remedy or to reduce an amount claimed will generally be permitted, even if raised late in a proceeding. Such a removal will not cause prejudice to the respondents and will not prolong the hearing. Accordingly, the request to reduce the overall amount of damages requested for breach of human rights, injury to dignity and mental anguish is allowed. The removal of the request for reimbursement of union dues and the damages as against the union of $20,000 is allowed. In addition, the removal of the request for transparency within the bargaining unit to allow injured workers to transfer to appropriate positions is allowed.

14I agree with the assessment in Picard that amending the remedies sought to clarify them is an appropriate exercise of the Tribunal’s discretion (at para. 25). In that case, the proposed amendments simply specified the exact type of remedies being sought and explained the basis for the financial compensation claimed.

15The proposed amendments to include loss of wages and benefits at an amount to be quantified are also clarifications of the original request. In light of the original request for reinstatement, a request for wage loss could be seen as implied. The applicant had originally asked for a particular amount for loss of benefits, and the requested amendment for benefits for an amount to be quantified is consistent with the approach that the Tribunal would base any determination of damages on the actual losses suffered. Changing the amount claimed from a fixed amount to an amount to be quantified is therefore a clarification of the original requested remedy.

16The applicant requested reinstatement to a full-time position in his original Application. The proposed change is reinstatement to a similar position to the full-time cleaner position. In my view, this is a clarification of the original request and is therefore allowed.

17The applicant also seeks an amendment requiring a consultant to be hired to conduct an audit of organizational policies, programs and procedures as they relate to the accommodation of employees with disabilities. In addition, he seeks an amendment requiring the hiring of a consultant to conduct necessary training.

18The request for a consultant to be hired to conduct training is an elaboration of the original request for training on dealing with injured workers. The reference to injured workers refers, in essence, to accommodation policies in general. The applicant did not specify how the training was to be conducted and now specifying that it be provided by a consultant is a clarification of his original request. Accordingly, the amendment will be allowed.

19The request for a consultant’s audit of organizational policies can also be regarded as a clarification of the original request of changes to organizational policies on the treatment of injured workers. The applicant did not specify what changes he was seeking or how those changes were to be determined. The amended request specifies a process for determining necessary changes. As such, it is a clarification of his original request.

20In conclusion I endorse the following statement from Picard (at para. 26):

…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.

order

21The Tribunal orders that the requested remedies in the Application are amended to read as follows:

a) Compensation for the violation of human rights, injury to dignity, self- respect and self-esteem and for mental anguish in the amount of $75,000;

b) Compensation for wages, benefits and any other compensation lost as a result of discrimination, in an amount to be quantified;

c) Reinstatement to a full-time position similar to the full-time cleaner position applied for on or around September of 2009; and

d) A letter of apology;

e) An order requiring NYGH to retain a consultant with expertise in human rights at its own expense and to conduct an audit of its organizational policies, programs and procedures as they pertain to the accommodation of employees with disabilities; and

f) An order requiring NYGH to retain a consultant to conduct training or otherwise address any educational gaps identified in the audit, as described above.