HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Paterno

Applicant

-and-

The Governing Council of the Salvation Army in Canada

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: January 27, 2012

Citation: 2012 HRTO 205

Indexed as: Paterno v. Governing Council of the Salvation Army in Canada

WRITTEN SUBMISSIONS

Frank Paterno, Applicant ) Self-represented

The Governing Council of the ) Elizabeth Traynor, Counsel Salvation Army in Canada, Respondent )

[1] This Interim Decision addresses various requests by the applicant for amendments to his Application. In a previous Interim Decision, 2011 HRTO 2298, the Tribunal dismissed, under s. 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), all allegations in the Application except for those relating to alleged discriminatory comments and harassment on the basis of disability. For the reasons that follow, the Request to Amend is denied except for the correction of the respondent’s legal name.

[2] The allegations in the original Application that the Tribunal did not dismiss are as follows:

June 10/11, 2009 – In meetings to discuss my back disability Nancy Kerr – Human Resources Director, informed me “employees with disabilities can cost us hundreds of thousands of dollars”. I found this statement demeaning and humiliating.

June 16, 2009 – I phoned in sick this day, because of back pain, and was harassed at home by being called three times by management angrily telling me I must come to work. Calling me was my manager Mary-Ellen Jacobs and Nancy Kerr.

[3] I turn now to the applicant’s requests. As requested, and on consent, the respondent’s name is corrected as set out in the style of cause above. As the respondent is represented by counsel, the Tribunal will continue to communicate with counsel, and there is no need to amend the contact person as requested by the applicant.

[4] The applicant wishes to add new allegations unrelated to the allegations in the Application set out above. It appears that the applicant justifies raising these new allegations at this late date on the basis that some stem from e-mails the applicant received following a production order made by the Tribunal on December 2, 2010: 2010 HRTO 2397. The applicant states that he did not make these allegations earlier because he received the information in response to the production request, and because he was waiting for the Tribunal’s decision on s. 45.1.

[5] Allegations must be made in a timely fashion and the applicant has not done so. Having reviewed the documents upon which he relies, I do not agree with the applicant that the allegations, with the exception of those he classifies as a failure to maintain the confidentiality of persons with disabilities, stem from the December 2010 disclosure. There is no reason for the applicant’s failure to raise these in the Application filed in 2009. In relation to the confidentiality allegations, there is no justification for the applicant’s failure to raise these allegations promptly once he received the production if this was the basis for doing so. Waiting for the Tribunal’s s. 45.1 decision does not constitute good faith; the importance of raising allegations in a timely way is so that the opposing party has the opportunity to investigate them and gather relevant evidence. The applicant was arguing that no part of the Application should be dismissed and it was incumbent upon him to raise any further allegations so that the respondent could take appropriate steps to respond. Moreover, I do not agree with the applicant that the e-mails support the conclusions he attempts to draw from them about the respondent’s alleged disclosure of confidential information.

[6] The applicant seeks to add various individual respondents. Applying the Tribunal’s established case law discouraging the unnecessary naming of individual respondents, and given the nature of the allegations properly before the Tribunal, set out at para. 2, above, there is no compelling reason to include any personal respondents: Persaud v. Toronto District School Board, 2008 HRTO 31. There is no question as to the organization respondent’s ability to fulfil any order, and this is not the type of case in which it would be appropriate to specifically award a remedy against any of the proposed individual respondents if an infringement is found.

[7] Accordingly, the Request to Amend is denied and the hearing will be limited to the allegations set out in para. 2. A one-day hearing will be scheduled.

Dated at Toronto, this 27^th day of January, 2012.

“Signed by”

David A. Wright

Associate Chair