Ricottone v. First Real Properties Limited, 2012 HRTO 1823

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Ricottone

Applicant

-and-

First Real Properties Limited and Randy Fisher

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 24, 2012

Citation: 2012 HRTO 1823

Indexed as: Ricottone v. First Real Properties Limited

WRITTEN SUBMISSIONS

Elizabeth Ricottone, Applicant

Wade Poziomka, Counsel

First Real Properties Limited and Randy Fisher, Respondents

Matthew Dewar, Counsel

Introduction

1This is an Application filed on November 10, 2011 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 because of disability. The allegations raise discrimination issues with respect to reduced hours and modified duties in 2009 and 2010, and with respect to the termination of the applicant’s employment on November 15, 2010.

2On August 8, 2012, the applicant filed a Request to amend her Application, indicating that she would like the Request to be dealt with in a conference call. On August 22, 2012, the respondents filed a Response to the Request, agreeing that the Request be dealt with in a conference call. Given that both the applicant’s counsel and the respondents’ counsel have filed fulsome written submissions, I see no need to deal with the Request orally.

REQUEST TO AMEND

3The applicant requests to add the allegations of discrimination because of sex and sexual orientation, as well as the allegations of sexual harassment and reprisal. The respondents “do not take issue with” the allegations of discrimination because of sex and reprisal, acknowledging that they flow from the facts in the original Application. They object to the request to add the allegations of discrimination because of sexual orientation and sexual harassment.

ANALYSIS

4In determining requests to amend applications 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 , Dunford v. Holiday Ford Sales, 2009 HRTO 1563; and Aubin v. Sudbury Sexual Assault Centre, 2011 HRTO 1281.

5The applicant’s submissions cite Boldt-Macpherson v. The Hoita Kokoro Centre, 2008 HRTO 16, to supply another articulation of the factors the Tribunal might consider to determine whether to allow amendments to Applications:

When considering whether to amend the complaint to add additional allegations, the Tribunal will consider several factors including:

a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,

b. Whether the allegations provide a useful context for considering the legal issues in the case,

c. The reasons for raising the allegations at this date,

d. The quality of the evidence to support the additional allegations,

e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and

f. The impact of the proposed amendment on the course of the hearing and the other parties.

Sex

6The facts supporting the Request to add sex as a ground relate to a word used on October 16, 2010 in an argument between a woman with whom the applicant worked and the applicant, in front of the applicant’s immediate supervisor. In that argument, the applicant’s co-worker called the applicant “a bitch”. The Request states that the corporate respondent did not investigate the applicant’s complaint about the use of the word, but disciplined the applicant and not the co-worker.

7The Application refers to this incident twice. The first time is in the narrative in reply to the Application form’s question, “What happened?” The applicant wrote a description of disability and consequent special needs, the alleged lack of accommodation and the timing of her termination soon after she wrote to the personal respondent about not being accommodated. One paragraph in the description alludes to the allegation of discrimination because of sex: “On October 16 2010 I was involved in a verbal altercation with another employee where the other employee called me a bitch and I was suspended without notice and not the other employee.”

8The second time the Application refers to the incident is in an untitled document attached to the Application which appears to supply more details about the incident of October 16, 2010:

On October 16 2010 I came to work on time. At approx. 3:10 pm Richard came to talk to me about the cleaning of the public washrooms in the foodcourt. Gretta was close enough to hear him speaking to me. He asked me who was supposed to clean the washrooms. I said me. As I was trying to tell Richard what I was doing Gretta came up and started to run her mouth. She interrupted my conversation with Richard. As the discussion got heated between Gretta and I, I told Gretta that I didn't want to hear it. When she didn't stop and Richard didn't tell her to stop I raised my voice. Up until this point Gretta and I had been fine with each other all day. Having a fun day. Gretta then came up to the other side of the garbage bin so the bin was between us, Gretta than perched her head towards me and called me a BITCH. I said to her oh yea I am, and Gretta reply to me yes that's what you're acting like. Richard was on the left side of the bin through the whole ordeal. Gretta then walked away and I asked Richard aren't you going to say anything to her. Richard then said to me What you want me to say to her. I then walked away to the supply room and grabbed my bag and was on my way to control 2 to talk with security…

As I was walking back to the foodcourt I saw Richard… and I said to him I didn't think it was fair for her to be swearing at me and are you going to talk to her about it. Richard said to me to go clean the washrooms and he would talk to her then when he was done talking to her that he would come talk to me… When Richard arrived I asked him if he had spoken to Gretta yet. He said yes and then I said and. Richard told me that Gretta said that she was only joking as we talked that way all the time. I disagreed that it was a joke as it was in the middle of a heated conversation. It seems to me that Richard just fluffed it out, I was upset and I raised my voice saying why is it always me, I went with trays towards Richard and he yelled at me to go home! I said yea you want me to go home! Richard said yes Go Home! [original text]

9I grant the Request to add sex as a ground, for the following reasons:

• the facts upon which the request to add the ground were contained in the Application

• the respondent does not object to the applicant’s request that the Application be amended to include an allegation of discrimination because of sex, and provides no submissions that it would be prejudiced

• the hearing has not yet been scheduled

Sexual Orientation

10The Request states that the facts supporting the allegation of discrimination because of sexual orientation are as follows:

The Applicant is a lesbian. During the duration of her employment for the Corporate Respondent, Ford and her co-workers repeated [sic] made inappropriate and offensive comments to her which were directly connected to her sexual orientation. These include:

i. “Do you want to be a guy?”

ii. “How come you are gay?”

iii. “Were you born this way?”

iv. “You look like a guy.”

11No mention is made in the Application of the above facts. No mention is made in any documents attached to the Application, including the letter the applicant wrote to her manager, the personal respondent, on October 22, 2010 to complain of Code violations.

12The applicant argues that the ground of sexual orientation should be added because it will “provide a useful context to consider the case” which she argues is complex because they intersect with each other over an extended period of time. The applicant argues that it is the combination of grounds that is the reason that she lost her employment. The applicant also argues that the amendment should be granted given that she was not represented by counsel at the time she filed her Application and Reply.

13The respondents argue that whether the applicant had retained counsel at the time she filed the Application is of marginal importance given that they received letters from the applicant’s counsel well before she filed the Application, on December 3, 2010 and February 10, 2011, and that these letters dealt with the termination and the Code. The facts related to the Request to add sexual orientation were not mentioned in those letters. The applicant has not disputed these letters. I am therefore not persuaded to grant the Request to add sexual orientation for the reason that the applicant was not represented at the time she filed the Application. She had obviously discussed her employment situation with counsel before she filed her Application.

14The respondents also point to prejudice that they would face if the ground were to be added because approximately two years have passed since the alleged remarks about the applicant’s sexual orientation were made. The only individual named by the applicant as having made the remarks is Richard Ford who is no longer an employee. The respondents state that the employer would therefore be severely hampered in defending against the allegations which, they argue, would not be allowed if contained in a new Application given the one year limitation period in the Code.

15Section 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.

16As stated in Shakhnazarov v. George Brown College, 2011 HRTO 1917, “While s.34(1) of the Code applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments, s. 34 does set out the Tribunal’s 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 (Khokher v. Intercon Security Limited, 2011 HRTO 1493).”

17The respondents also argue that the allegations do not provide a useful context for considering the issues in this case. Rather, they propose a “new factual matrix which requires a new legal framework.”

18I agree with the respondents in that the facts related to the allegation of discrimination because of sexual orientation are unrelated to the facts in the Application. They raise facts and issues unrelated to the facts and the issues to be determined in the context of the Application as it stands, and to allow the amendment approximately two years after the comments were allegedly made would be prejudicial to the respondents given that Mr. Ford is no longer an employee. For these reasons, and the fact that the applicant had retained counsel after her employment was terminated, and before she filed her Application, I deny the Request to add sexual orientation.

Sexual Harassment

19For similar reasons, I deny the Request to add sexual harassment.

20The Request states that the facts supporting the allegation of sexual harassment are as follows:

During the Applicant’s employment with the Corporate Respondent, Ford, her immediate supervisor, made several inappropriate sexual remarks to the Applicant which were clearly unwelcome.

Specifically, the Applicant’s partner attended the workplace with her son. In front of the Applicant, the Applicant’s partner and her son, Ford stated to the Applicant “I would like to watch you and your girlfriend have sex.”

This was not a one-time comment. Ford repeatedly made comments of this nature to the Applicant despite being told by the Applicant that it made her feel uncomfortable.

21No mention is made in the Application of the above facts. As with the allegations relating to sexual orientation, no mention of sexual harassment is made in the applicant’s counsel’s letters to the respondents. Nor is it mentioned in any documents attached to the Application, including the letter the applicant wrote to her manager, the personal respondent, on October 22, 2010 to complain of Code violations.

22I agree with the respondents that the facts related to the allegation of sexual harassment are unrelated to the facts in the Application. They raise facts and issues unrelated to the facts and the issues to be determined in the context of the Application as it stands, and to allow the amendment approximately two years after the comments were allegedly made would be prejudicial to the respondents given that Mr. Ford is no longer an employee. For these reasons, and the fact that the applicant had retained counsel after her employment was terminated, and before she filed her Application, I deny the Request to add sexual harassment.

Reprisal

23The Request states that the facts supporting the allegation of reprisal are as follows:

On October 22, 2010, the Applicant submitted a letter to the corporate Respondent stating, inter alia: “I have found through the Human Rights Commission that these actions are a direct violation of the Code Policy and Guidelines on Disability and the Duty to Accommodate Section”.

The only intervening event, between the altercation on October 16, 2010 and the decision to terminate on November 15, 2010 was the letter of October 22, 2010 whereby the Applicant alleged that her rights under the Code had been violated.

24The Application does not indicate that reprisal is alleged, but the narrative in it includes the following:

After having submitted the letter of Oct 22 2010, the next thing that happened was that on Nov 15 2010 I was terminated. The letter I received indicates, “Despite having spoken with you on several occasions regarding behavioural misconduct it has continued.”

Nothing in fact happened between Oct 16 2010 and Nov 15 other than my complaint that I have the right to be free from discrimination on the basis of my disability under the Ontario Human Rights Code had been violated.

…Again, the only thing that changed between that date [October 16, 2010] and the date of the termination was that I tried to protect my right to be free from discrimination. [original text]

25I grant the Request to add the allegation of reprisal for the following reasons:

• the facts upon which the request to add the ground were contained in the Application

• the respondent does not object to the applicant’s request that the Application be amended to include an allegation reprisal, and provides no submissions that it would be prejudiced

• the hearing has not yet been scheduled

SUMMARY

26For the reasons set out above, I grant the applicant’s Request to amend her Application to include the new allegations of discrimination on the ground of sex and reprisal, but I deny her Request to amend her Application to include the new allegations of discrimination on the basis of sexual orientation and sexual harassment.