Vilner v. Zale Canada Co., 2012 HRTO 2048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karina Vilner

Applicant

-and-

Zale Canada Co. and Donna Medd

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 29, 2012

Citation: 2012 HRTO 2048

Indexed as: Vilner v. Zale Canada

WRITTEN SUBMISSIONS

Karina Vilner, Applicant

Self-represented

Zale Canada Co. and Donna Medd, Respondents

Lisa Washington-Watts, Counsel

1The applicant filed this Application on July 10, 2012, alleging discrimination and reprisal with respect to employment on the basis of race, ancestry and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents filed a Response on September 17, 2012 denying the allegations of discrimination and reprisal. The respondents allege that the applicant’s employment was terminated for cause.

3The applicant filed a Reply on September 28, 2012. The applicant also filed a Request for an Order During Proceedings asking the Tribunal to allow her to amend her Application to modify her remedial claims and asking the Tribunal to order the respondents to provide disclosure and production of various documents and records.

4On October 17, 2012, the respondents filed a response opposing the applicant’s request for disclosure and production. The respondents made no submissions with respect to the applicant’s request to amend her remedial claims.

REQUEST TO AMEND

5Rule 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”.

6In 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.

7The applicant seeks to amend the Application in two regards: 1.) that she be allowed to augment the specific heads of damages for which she seeks compensation and 2.) that the respondents be required to convert the reason for dismissal, specifically termination for cause, to resignation so as to not blemish her employment record.

8In previous decisions, the Tribunal has allowed amendments to Applications, including remedial claims, prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050.

9The respondents take no position with respect to the proposed amendments and, therefore, no concerns of any prejudice have been raised with the Tribunal. As such, I see no reason to deny the request to amend given that the applicant is simply clarifying the types of compensation and relief she is seeking as her remedial claim. The decision to allow such amendment has no bearing on, or indication of, the merits of the Application and the remedial claims.

DISCLOSURE REQUEST

10The applicant requests disclosure and production of a broad range of documents regarding the termination of another employee, telephone records, notes, as well as video and telephone recordings. The applicant indicates that she requires these materials for the purposes of the hearing.

11The respondents oppose the request and note that the Tribunal’s process does not require such disclosure at this early stage. The respondents submit that requiring production of such disclosure at this early stage would place an unreasonable burden upon the respondents.

12The Tribunal’s Rules of Procedure (“Rules”) sets out the obligations and requirements that parties must satisfy with respect to exchange of arguably relevant information and production of anticipated hearing evidence.

13Rule 16 requires that parties to an Application will exchange arguably relevant documents 21 days after the Notice of Hearing is issued by the Tribunal, which has not yet occurred in this case. Rule 17 requires parties to exchange witness lists and summary of expected hearing evidence no later than 45 days prior to the first scheduled hearing day. Copies of documents intended to be relied upon in the hearing are required to be exchanged at this time.

14The documents and recordings sought by the applicant may potentially be part of the respondents’ arguably relevant disclosure pursuant to Rule 16 and/or hearing production pursuant to Rule 17. The applicant has offered no reason why an exception should be made by the Tribunal to require arguably relevant disclosure in advance of these Rules. Consequently, the Tribunal must deny the applicant’s request for disclosure and production because the request is premature.

CONCLUSION

15The applicant’s request to amend the Application is granted. The applicant’s request for production and disclosure is denied. Given that the applicant has indicated that she no longer wishes to participate in mediation, the Application will proceed in the normal course of the Tribunal’s process.

16I am not seized of this matter.