Derek Crane v. Henniges Automotive and Joe Boute, 2012 HRTO 1638

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Crane

Applicant

-and-

Henniges Automotive and Joe Boute

Respondents

-and-

United Steelworkers Local 455

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 27, 2012

Citation: 2012 HRTO 1638

Indexed as: Crane v. Henniges Automotive

WRITTEN SUBMISSIONS

Derek Crane, Applicant

Robert Tanha, Counsel

Henniges Automotive, Respondent

Christopher Fiore, Counsel

Joe Boute, Respondent

Robert Healy, Counsel

United Steelworkers Local 455, Intervenor

Robert Healy, Counsel

1The applicant filed this Application on July 13, 2010, alleging discrimination with respect to employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant identified his employer as the corporate respondent and the former president of his union, Local 455, as the individual respondent to the Application. The applicant alleges that the respondents failed to provide him with suitable workplace accommodations.

3On December 3, 2010, the respondents filed their respective Responses denying the allegations. The respondent employer alleges that the applicant was provided with appropriate accommodation and that his concerns were investigated by the Ministry of Labour and no orders whatsoever were issued. The individual respondent alleges that he facilitated the applicant’s accommodation.

4On December 3, 2010, the applicant’s union filed a request to intervene and provided its perspective with respect to the applicant’s allegations. The union indicates that the applicant never filed a collective agreement grievance alleging he was not accommodated. On December 24, 2010, the applicant’s representative filed submissions alleging that the union failed to provide the applicant with proper support.

5On December 17, 2010 and February 2, 2011, the applicant filed detailed Reply submissions maintaining his allegations of lack of workplace accommodation.

PROCEDURAL BACKGROUND

6On March 30, 2011, the applicant’s former representative filed a request to amend the Application. The applicant sought to include the ground of reprisal to the Application and also requested to include additional remedies for losses arising from the alleged reprisals.

7By way of Interim Decision 2011 HRTO 1036, dated May 31, 2011, the Tribunal determined that it was prepared to allow the inclusion of the ground of reprisal and certain particulars because “of the small number of additional facts involved and the apparent lack of prejudice to the respondents.” Accordingly, the Application was amended to include remedies for mental anguish, reprisal, lost wages, lost pension and lost benefits.

8The previous Interim Decision also granted the applicant’s union leave to intervene in the Application. The Tribunal held that the scope of the union’s intervention will be determined by the adjudicator hearing the matter.

9On October 24, 2011, the Tribunal received correspondence indicating that new counsel now acted for the applicant.

10On May 14, 2012, the Tribunal issued a Notice of Confirmation of Hearing notifying the parties and the intervenor that a hearing is scheduled for December 17, 18, and 19, 2012.

11On July 20, 2012, the applicant filed a second request to amend his Application and also sought to add the union as a respondent party. The applicant’s materials set out numerous paragraphs of particulars with respect to his allegations against the respondents and the proposed union respondent, as well as specific heads and quantum of damages sought as compensation. The applicant submits that the amendments are necessitated by the fact that the Application was originally prepared by the applicant and the applicant’s paralegal representative prior to the retainer of counsel.

12The respondents and the proposed union respondent filed submissions on August 3, 2012, opposing the applicant’s requests. In particular, the union notes that the applicant’s allegations that the union did not provide him with fair representation were dismissed by the Ministry of Labour.

REQUEST TO AMEND AND ADD A PARTY

13Rule 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”.

14In determining requests to amend applications under section 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.

15The applicant’s requests to amend the Application and add the union are denied as untimely and prejudicial. The requests fail to provide any submissions as to why it is now necessary to assert new allegations and add the union. In its earlier Interim Decision granting the original request to amend, the Tribunal noted that it was allowing the amendments in view of the small number of additional facts and the apparent lack of prejudice to the respondents.

16The requests are being made over two years after the commencement of the Application and almost fourteen months after it was first amended. The request to amend is broad ranging in the nature of the claims and asserts allegations from 2004 onwards.

17The respondents and proposed respondent submit that there has been a serious delay in seeking to amend the Application and in seeking to add the union. The respondents point out that the delay is prejudicial because the workplace has shutdown down and the physical premises sold. All employees, except one, have been dismissed as a result of this closure. Similarly, the union indicates that, with the workplace closure, Local 455 has ceased operations. As a result, they submit the respondents and union’s ability to gather information and locate witnesses is significantly undermined.

18I accept the respondents’ and proposed respondent’s position that there has been significant delay on the applicant’s part in raising the amendments and seeking to add the union. As previously noted, there is no information in the applicant’s materials to explain why the requests could not have been made in a timelier manner. It appears that the applicant was represented since December 2010 and had ample opportunity to attempt to include the allegations and add the union. This is not a situation where the applicant’s concerns have only recently come to light. Based on the respondents’ and the union’s submissions, it appears the applicant has twice previously attempted to seek redress regarding related allegations through the Ministry of Labour.

19The parties have already exchanged arguably relevant disclosure and the hearing is scheduled to commence on December 17, 2012. I find that the proposed amendments and request to add the union will unduly broaden the scope of the Application and, at this late stage, unfairly complicate the hearing process and negatively impact the Tribunal’s commitment to proceed in a fair, just and expeditious manner.

CONCLUSION

20The applicant’s request to amend the Application and add the union is denied for the reasons as set out above.

21I am not seized of this matter.