Morten v. Haydon Youth Services Inc., 2012 HRTO 2113

Human Rights Tribunal of Ontario

Between:

Sylvia Morten Applicant

-and-

Haydon Youth Services Inc. and Centre for Rational Learning Inc. Respondents

Interim Decision

Adjudicator: Mary Truemner Date: November 12, 2012 Citation: 2012 HRTO 2113 Indexed as: Morten v. Haydon Youth Services Inc.

Written Submissions

Sylvia Morten, Applicant Bhavin Bilimoria, Counsel

Haydon Youth Services Inc. and Centre for Rational Learning Inc., Respondents Don Pazaratz, Representative

Introduction

1This is an Application filed 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.

2The applicant filed a Request for Order During Proceedings to amend the Application with respect to the remedy the applicant seeks so that:

a) the characterization of general damages, (but not the amount claimed), would be changed from "$10,000 for breach of subsection 5(1) of the Code" plus "$10,000 for mental distress and anxiety arising from employer's conduct" to "$20,000 for the violation of my inherent right to be free from discrimination and for injury to my dignity, feelings and self-respect;" and

b) the amount claimed for outplacement services and legal costs would be removed;

c) an amount claimed for lost income for 7 months, $22,446,67, would be added;

d) an amount claimed for unpaid wages, $1,200, would be added.

3The Request also seeks to amend the Application to add a party, the Centre for Rational Learning Inc. ("the Centre"), which the applicant describes as either operating as Haydon Youth Services Inc. ("HYS") or for which Haydon Youth Services Inc. is a shell corporation.

Request to Amend

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 respondents. See Dube v. Canadian Career College, 2008 HRTO 336.

5The applicant, in her written submissions, argues that changes to the remedy requested are based on the amount of time that has passed since the Application was filed, and the effect this has had on her ability to be reinstated. She also states that she does not seek reinstatement.

6I accept that, to the extent that they relate to the allegations contained in the Application, the proposed amendments concerning the remedies sought by the applicant should be allowed. The Tribunal regularly allows amendments to Applications with respect to remedies requested when the reason is that time has passed since the filing of an Application and its hearing. I make no finding as to the whether these remedies will be ordered. However, applying the legal principles set out above and reviewing the submissions of both parties, I see no reason to deny the request to amend the Application with respect to remedies as requested by the applicant.

Request to Add a Party

7The applicant argues in her submissions that HYS and the Centre are essentially one entity, and that while HYS held itself out to be her employer, the Centre paid her salary. She attached a Record of Employment to support her position. The applicant also attached Corporation Profile Reports to her submissions. They show that HYS and the Centre are controlled and managed by the same individuals, and have the same mailing addresses.

8The respondent, in its submissions, appears to oppose the Request because it believes that, "To uphold natural justice[,] arbitration shouldn't have been set up in the first place." It appears that the arbitration to which the respondent refers is the adjudication process at the Tribunal with respect to this Application.

9The respondent essentially agrees, however, that the Centre is interrelated with HYS and that the applicant worked for both corporations from 2004 to 2011. It appears that the respondent is opposed to the Request because the applicant is "attempting to mislead" the Tribunal by pretending not to have known that the corporations were interrelated. The respondent attached to its submissions a Statement of Claim filed by the applicant in court for a "slip and fall" that appears unrelated to the allegations in the Application, but that appears to indicate that the applicant should have known to have added the Centre as a respondent when she filed her Application.

10The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513 that when determining a request to add a respondent, the Tribunal should consider the following three questions.

(1) Are there allegations made that could support a finding that the respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

11Applying the legal principles set out above, reviewing the submissions of both parties, and noting that there would be no prejudice to the respondent if the Centre were added as a respondent, I see no reason to deny the applicant's request to add the Centre.

Order

12The Tribunal grants the applicant's Request 1) to amend the remedies section of the Application as itemized above, and 2) to add the Centre as a respondent. The style of cause now reflects the addition of the Centre as a respondent.

Other Matter – Possible parallel proceedings with facts and/or issues that overlap with the facts and/or issues in the Application

13The respondent's submissions include a reference to a wrongful dismissal claim by the applicant. The applicant denies that one was ever filed at any court. If the respondent wishes to pursue any request to dismiss or defer the Application on the basis that the facts and/or issues in the Application are part of another proceeding, then the respondent must attach to a Request for Order During Proceedings a copy of the document that the applicant is alleged to have filed at court. In the meantime, the Tribunal shall continue to process the Application.