Cadarette v. Peel Regional Police Services Board, 2012 HRTO 2411

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kimberly Cadarette

Applicant

-and-

The Regional Municipality of Peel Regional Police Services Board

and Peel Regional Police Association

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: December 31, 2012

Citation: 2012 HRTO 2411

Indexed as: Cadarette v. Peel Regional Police Services Board

WRITTEN SUBMISSIONS

Kimberly Cadarette, Applicant

Selwyn Pieters, Counsel

The Regional Municipality of Peel Regional Police Services Board, Respondent

Lauri Reesor, Counsel

Peel Regional Police Association, Respondent

Gary Hopkinson, Counsel

Introduction

1The applicant filed an Application on February 1, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to disability, sex (including sexual harassment), sexual solicitation and reprisal in employment. At the time of filing her Application, the applicant was self-represented. Initially the applicant named The Regional Municipality of Peel Regional Police Services Board (“Peel”), Peel Regional Police Association (“PRPA”), Ottawa Police Service (“OPS”) and Ottawa Police Association as respondents.

2The applicant’s Application consists of the completed Application form, and accompanying documentation, some of which was submitted after filing the Application, including handwritten observations, notes of a December 16, 2009 interview apparently taken by a representative (“the representative’s interview notes”) of PRPA, a document containing the applicant’s “corrections” to the representative’s notes and further information in relation to the representative’s interview notes, as well as a letter sent February 25, 2010, a letter dated March 16, 2010, an undated letter filed by the applicant and received by the Tribunal on May 7, 2010. The Application form itself does not provide a lot of information, but, rather, refers to the interview notes and corrections which are attached to the Application. The interview notes and corrections are disjointed, not in chronological order, and provide background information about the applicant’s childhood and relatives. The applicant’s dating history before working with OPS and while working with Peel is also provided, as is information about her finances. The Application and its attached materials contain a number of generalized allegations, with very little details provided about those allegations, and do not identify the alleged harasser(s).

3All of the initial respondents filed Responses and all the respondents, except for OPS, filed Requests for Order During Proceedings (“RFOP”) requesting that the Application be dismissed against them on the basis of delay and lack of prima facie case against them. Subsequently, the respondents, except for OPS, filed Requests for Summary Hearing requesting that the Application be dismissed against them.

4Subsequent to the materials being filed by the respondents, the applicant retained counsel. The applicant’s counsel wrote to the Tribunal, copying the respondents, advising that he had been retained and that the applicant would be seeking to amend her Application. The applicant’s then counsel requested that the Tribunal put the issues raised in the respondents’ materials in abeyance while the Tribunal first considered if the applicant could amend her Application and he filed a RFOP requesting to amend the Application. The RFOP contained very little particulars and details about how the applicant sought to amend her Application, and instead focussed on legal principles which the applicant submitted the Tribunal ought to consider in allowing her Application to be amended. The respondents objected to the suggestion that their issues be held in abeyance pending the Application being dismissed.

5In an Interim Decision, 2011 HRTO 1660 (“the Interim Decision”), the Tribunal dismissed the Application as against the OPS and Ottawa Police Association on the basis of delay, but continued the Application against Peel and PRPA. The Tribunal directed the applicant to deliver to Peel and PRPA and file with the Tribunal a copy of her proposed amended Application. In directing the applicant to do so, the Tribunal noted that this did not mean that the Tribunal would automatically permit the applicant to amend her Application as the Tribunal would require the parties’ submissions prior to making this determination. The Tribunal further noted that if the applicant sought to file additional submissions about her ability to amend her Application, in addition to those contained in her RFOP, she was directed to file those as well. The respondents were also given the opportunity to file submissions.

6After receiving an extension by the Tribunal, the applicant submitted a proposed revised Application (“the proposed amendments”) which contains 71 paragraphs of mostly detailed allegations, with individuals specifically identified, and names, for the first time, a personal respondent (“the proposed personal respondent”) whom, on an interim basis, the Tribunal has anonymized. The applicant did not file additional submissions about her ability to amend her Application, beyond those raised in her initial RFOP. The proposed amendments, for the most part, provide particulars about the what, who, when, and where that the Tribunal requires an applicant to provide in response to Question 8 of the Application form and essentially constitute a new application.

7After the issuance of the Interim Decision, both respondents filed additional submissions objecting to the applicant’s proposed amendments. In reviewing those submissions, it became apparent to the Tribunal that the applicant had not provided a copy of the proposed amendments to the proposed personal respondent and neither respondent indicated that it represented the personal respondent.

8A Case Assessment Direction (“CAD”) was issued by the Tribunal directing the respondents to confirm whether or not they were representing the personal respondent and whether they intended to make any further submissions on behalf of the personal respondent. If neither respondent represented the proposed personal respondent, the Tribunal directed the applicant to deliver to the proposed personal respondent copies of materials that had been filed, including, but not limited to the proposed amendments. The Tribunal further directed the proposed personal respondent to deliver submissions to the applicant and the respondents, if he wished to make submissions on whether or not he should be included as a personal respondent.

9PRPA advised the Tribunal that it was not representing the proposed respondent. Peel advised the Tribunal that it was unable, at this juncture, to advise whether it was representing the proposed personal respondent, given, amongst other things, the substantive changes in the proposed amendments, and the significant vicarious liability legal issues arising from section 46.3(1) of the Code with the naming of the proposed personal respondent. Peel advised that it had made the proposed personal respondent aware of the new allegations against him, and while it was not jointly retained at that time to represent him, the proposed personal respondent had advised that he agrees with and accepts Peel’s submissions with respect to the proposed amendments. After hearing from the respondents, the applicant emailed the proposed personal respondent the material as she was directed to do so in the CAD. The proposed personal respondent has not filed any submissions about whether or not he should be added as a personal respondent and the Tribunal has received no communications from him.

Amending Pleadings

10Compared with the Application and the supporting material filed by the applicant, which, as described above, is disjointed, vague, and contains very generalized allegations, the proposed amendments are specific, and set out, for the most part, time frames for the allegations. There are some inconsistencies between the Application and the proposed amendments. The Application was completed when the applicant was self-represented and the proposed amendments are drafted by the applicant’s counsel. While the Application is still in its early stages, in that the hearing has not been scheduled (the respondents have not agreed to mediate), the proposed amendments were filed after the Responses and Requests for Summary Hearings were filed by the respondents and the specific of the proposed amendments, including the identity of alleged harassers, were not made until after the Tribunal directed the applicant to file the proposed amendments.

11In my view, there is some unfairness to a respondent when an applicant, after having filed his or her Application and after a Response has been filed, retains counsel and counsel drafts which is essentially a new Application which cures any potential defects in the initial Application. However, in determining requests to amend applications filed 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; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563. Further, the Tribunal has held that section 34(1) of the Code only applies to when an applicant may file an Application and not to when he or she can seek to amend an Application. See Grills v. Proctor and Gamble Inc., 2011 HRTO 2009 at para. 25.

12Given the nature of the proposed amendments, I have broken them into different issues and have considered whether the proposed amendments will be permitted under each issue.

13Peel filed submissions objecting to the proposed amendments. The submissions were specific in relation to the allegations against the proposed personal respondent, as set out below, and more generalized with respect to the other allegations in the proposed amendments. Peel submits that the proposed amendments are: untimely; fundamentally change the scope and nature of the Application, including raising new allegations made after the Application was filed and identifying for the first time new persons; and that the applicant has failed to provide any reason for the amendments. It is not sufficient, Peel submits, for the applicant to claim that she was a layperson when she filed the Application and is now represented by counsel. She is, Peel submits, is a sophisticated police officer with experience in writing reports, and the letters that she attached to her Application demonstrate her ability to raise her complaints and raise them with senior officials. It “defies reality” for the applicant to claim that she forgot or was unaware of her allegations until she was represented by counsel. Peel asserts that it is prejudiced by some of the proposed amendments, and its prejudice arguments are set out below.

14PRPA also filed submissions objecting to the proposed amendments. Those objections are set out below.

The Allegations Against PRPA

15Paras. 64 to 66 of the proposed amendments are specifically about PRPA. Essentially, the applicant now alleges that PRPA has: condoned and facilitated the alleged harassment by Peel and its officers; been unhelpful in assisting her with respect to her complaints of harassment and discrimination; and failed to file a grievance or take any further substantive action on her behalf. Further, the applicant now alleges that PRPA has chosen to protect the rights of the alleged harassers, who are also members of the PRPA, over her rights.

16Attached to her Application, the applicant alleged, in a letter dated March 16, 2010, that she had lost trust with PRPA despite advising it of her allegations as, she alleged, “little to nothing [was] done” about them.

17In her submissions attached to her RFOP, there is brief mention of the PRPA. In the RFOP, the applicant submits that PRPA failed to take immediate and appropriate action to address the harassment and discrimination against the applicant. Instead, she submits, PRPA “… permitted and encouraged the supervisory officers’ – who are members of their association – inappropriate conduct towards the Applicant”. She has “significant evidence”, she claims, of “covert and overt facilitation” by PRPA and another.

18PRPA submits that the amendments ought not to be allowed by the Tribunal. It notes that the applicant marked off “employment” as the social ground upon which her Application is based, and that PRPA is not her employer. The applicant did not mark off “membership in a vocational association”, and the applicant is not seeking to her have Application amended to include this social ground. Further, PRPA submits that the proposed amendments are not relevant to any alleged or proposed ground of discrimination as against it. In the alternative, PRPA consents to paras. 65(a), (b), (c), (d), and (g) of the proposed amendments being amended, but vigorously opposes the proposed amendments at paras. 64, 65(e), (f) and 66 being allowed and submits that the latter paragraphs contain allegations which post-date the Application and significantly expand the scope of the Application. PRPA submits that it is not asserting prejudice.

Analysis

19In these circumstances, I find that the scope of the proposed amendments in relation to PRPA, including those that post-date the date the Application was filed, are not so significant beyond the issues identified in the Application. Given the stage of the proceedings, and the absence of any prejudice, I will allow the proposed amendments as against PRPA.

20However, having reviewed the Application, it appears that the applicant may be unable to prove the allegations against PRPA, even if the Application were amended to include the social ground of membership in a vocational association (which has not been requested). Accordingly, the Tribunal determines, on its own initiative, that the applicant’s amended Application against PRPA be determined by way of a Summary Hearing.

21Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

22In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

23The Tribunal does not have the power to deal with general allegations of unfair treatment by unions or employee associations. The Tribunal can only deal with allegations of discrimination or harassment which are based on the prohibited grounds set out in the Code. In keeping with this, the Tribunal has found that it is not discrimination for a union or an employees association to decide not to pursue a grievance, or address a member’s issues, unless its decision is linked, in whole or in part, to a prohibited ground of discrimination under the Code: see Baylet v. Universal Workers Union, 2009 HRTO 700; Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025; Koroll v. Automodular, 2011 HRTO 774; Gungor v. Canadian Auto Workers Local 88, 2011 HRTO 1760; and Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285.

24As the Tribunal stated in Traversy v. Mississauga Firefighters’ Association at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

25Further, there may be a delay issue pertaining to the allegations found in paras. 65(a) and (b) which are undated. These specific allegations are now being made many months after the Application was filed. Therefore the Tribunal also directs a preliminary hearing by teleconference to deal with the issue of delay. While amendments to an Application may be granted by the Tribunal outside of the time limits in section 34(1), there is also an expectation that an applicant will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. Grills, supra at para. 26.

26The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during the summary hearing and shall make argument about why the allegations at paras 65(a) and (b) should not be dismissed for delay and why the Application overall as against PRPA should not be dismissed as having no reasonable prospect of success. No witnesses will give evidence during the summary hearing.

27If the Tribunal determines that the Application has no reasonable prospect of success as against PRPA, it will be dismissed against PRPA. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process.

28A Notice of Summary Hearing will follow from the Registrar’s Office. The applicant is directed to provide particulars about the dates of the allegations in paras. 65(a) and (b), and any submissions she wishes to make pertaining to delay, including any good faith explanation, within 14 days after the issuance of this Interim Decision. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

The Allegations Against the Proposed Personal Respondent

29In the proposed amendments, the applicant’s allegations about the proposed respondent are serious and, if proven, could result in significant remedies. The applicant alleges, in paras. 5 to 13, that the proposed respondent, one of her superiors, sexually solicited and sexually harassed her commencing in March 2008 to the extent that “Given his power over me as my supervisor, I involuntarily gave in to [sic] his pressure. I felt that I had no choice but to enter in to [sic] an intimate sexual relationship with him, arising out of my fear of adverse employment consequences, further harassment and reprisals” (para. 9). Their relationship, the applicant alleges, lasted just under three months. On September 25, 2008, she met with senior officials at Peel and provided them with details of her allegations against the proposed personal respondent.

30The allegations pertaining to the proposed personal respondent are from March 2008 until approximately September 2008. The only allegations specifically about the proposed personal respondent after September 2008 are from November 2009, when the applicant alleges that he contacted her roommate via Facebook, in para. 30, and asked if the applicant had moved in, and the applicant’s allegation in para. 32 that her roommate asked her to move out at the end of December 2009 because the proposed personal respondent had contacted her roommate.

31There are other references to the proposed personal respondent in the proposed amendments. However, those references relate to the applicant telling individuals within Peel, the PRPA and others, that she had been harassed, and that she was subjected to a poisoned working environment by others within Peel because of their friendship or association with the proposed personal respondent.

32By contrast, the original Application does not allege or even imply that the proposed personal respondent sexually harassed, sexually solicited the applicant, or forced her into a relationship against her will. In an attachment to her Application, the applicant writes, “I…. believe that I am and have been financially, sexually, mentally and criminally harassed. I also believe that I am and have been allienated [sic] as well have had my job/career threatened”. The Application, at that time, named four respondents, as described above, including OPS and Peel, and the applicant marked off sexual harassment, sexual solicitation, disability and reprisal as the Code grounds upon which her Application was based.

33The Application does not indicate who allegedly sexually harassed or solicited her and suggests that such actions occurred while she worked with both OPS and Peel. There is no suggestion that the proposed personal respondent sexually harassed or solicited her. With respect to the proposed personal respondent, in the representative’s interview notes, there are two references to the proposed personal respondent. One states that they dated for three months, with the applicant ending it “as she didn’t want anything too heavy” and the other claims that the proposed personal respondent sent her roommate a Facebook message asking if the applicant had moved in with her. In her “corrections”, the applicant provides different reasons for the end of her relationship with the proposed personal respondent, but nothing that states, suggests or implies that she had been sexually harassed or solicited.

34Moreover, in the Application, the applicant identified a number of other individuals whom she alleged may be responsible for the harassment that she was experiencing. They included: an unknown person, or potentially a group of persons, from an unknown location; the stepmother of a former fiancé in Windsor; a former boyfriend from a police force other than Peel or OPS; a “Steve” and “Maria” in Ottawa and members of the OPS; a member of Peel who “may have been brought into it by others”; her mother; and her sister.

35In the applicant’s RFOP seeking to amend her Application, she alleges that she was sexually harassed, had sexually fuelled notes, text messages and telephone calls, and unexpected visits to her residence by “supervisory police officers” from both OPS and Peel. The RFOP is silent with respect to the identity of her alleged harasser(s).

36Peel objects to the proposed amendments pertaining to the proposed personal respondent on the grounds that they are substantial in nature and untimely. Further, Peel submits that it is prejudiced by the inordinate delay in the proposed amendments about the proposed personal respondent, including being unable to locate the electronic data that the applicant alleges the proposed personal respondent sent to her, notes that the applicant has not provided an explanation for the delay, and submits that an investigation into the applicant’s allegations was conducted in 2010 which did not involve the proposed personal respondent as the applicant had not identified him or made any allegations against him.

Analysis

37Given the above, and while the sexual harassment allegations from 2008 appear to be untimely, I need not determine whether or they are untimely and whether Peel has incurred prejudice as I deny the applicant’s proposed amendment about the proposed personal respondent in 2008 and deny to add him personally as a personal respondent. I find that the proposed amendments about the proposed personal respondent are so substantial and overwhelmingly different from the nature of the allegations and the characterization of the proposed personal respondent in the Application that it would be grossly unfair, at this point, to require the proposed personal respondent to be added as a personal respondent and to require both he and Peel to respond to these allegations.

38The allegations in 2009 about the proposed personal respondent, in paras. 30 and 32, can continue within the body of the applicant’s Application, but without naming the proposed personal respondent as a personal respondent. However, as with the allegations against PRPA, the Tribunal has concerns that the applicant can prove that the allegations about the proposed personal respondent in 2009 amount to a violation of the Code. Accordingly, the allegations contained in paras. 30 and 32 will become another issue to be argued during the Summary Hearing teleconference.

Allegations Against Constable Montclair

39Towards the end of the proposed amendments under the heading “sex discrimination, sexual harassment and sexual solicitations”, the applicant alleges, at para. 39:

I was sexually harass[ed] and subjected to sexual solicitations, sexual harassment and discrimination from [the proposed personal respondent] and Constable Montclair. Their conduct as described above included coerced intercourse, unsolicited physical contact, persistent propositions, gender-based insults and taunting, all of which created a sexualized and poisoned work environment. My ability to do my job was impacted.

40Constable Montclair is not named as a personal respondent. There are two paragraphs, paras. 15 and 16, in the proposed amendments that contain allegations specifically about Constable Montclair. In one paragraph, the applicant claims that on October 25, 2008, she received several text messages from him and alleges, “There was really no conversation engaged but several insulting text messages stating on how he has realized what was wrong with me and began stating that I have a severe case of Paranoia. At that time I responded stating that I find those comments very insulting and wanted no further contact with hm. He text[ed] me a few more times”. In the other paragraph, para. 16, the applicant alleges that on October 27, 2008, she confronted a Staff Sergeant about Constable Montclair and his text messages.

41Attached to the applicant’s Application, in the representative’s interview notes, there is a paragraph in which the applicant tells the representative that she dated Constable Montclair for some months. In a later paragraph, it alleges that on October 27, 2008, the applicant received a text message from Constable Montclair stating “Did a lot of thinking and I know understand that you are paranoid”. In her corrections to the representative’s interview notes, the only reference that the applicant makes to Constable Montclair is “I discussed in full details my beliefs of what had and continued to be happening with Cst Montclair”.

42The applicant’s RFOP is silent with respect to any allegations pertaining to Constable Montclair.

43Peel’s objections, as set out above, are not specific to the applicant’s proposed amendments pertaining to Constable Montclair. It notes, however, that the applicant’s proposed allegations identify for the first time individuals, including the proposed personal respondent, who are alleged to have sexually harassed and solicited her.

Analysis

44The Tribunal will permit the amendments pertaining to Constable Montclair as set out in the proposed amendments in paras. 15 and 16. The nature of the allegations pertaining to Constable Montclair is similar between the Application and the proposed amendments apart from para. 39, set out above, in which the applicant alleges for the first time that she was subjected to sexual harassment and solicitations from Constable Montclair.

45However, it appears to the Tribunal that the allegations relating to Constable Montclair are untimely in that they relate to 2008 and the Application was filed in February 2010. Further, it appears to the Tribunal that the applicant will have difficulty in proving that her allegations against Constable Montclair amount to a violation of the Code.

46Accordingly, the Tribunal finds it appropriate to seek submissions from the applicant about the delay in raising allegations against Constable Montclair including what, if any, good faith reasons she has for the delay in raising her allegations about him before the Tribunal. The applicant has 14 days from the date of this Interim Decision to file with the Tribunal, copying the respondents, the reasons for her delay in raising her allegations against Constable Montclair, including any good faith explanation.

47The respondents are not required to file any submissions to the Tribunal following receipt of the applicant’s submissions. However, if they wish to do so, they are directed to file such submissions with the Tribunal, copying the other parties and the proposed personal respondent, within seven days of receipt of the applicant’s submissions.

Poisoned Working Environment

48In the proposed amendments, the applicant also alleges that she experienced a poisoned working environment, which appears to have commenced in the fall of 2008. Some of the applicant’s allegations about the poisoned working environment she alleges are related to her relationship with the proposed personal respondent, such as being “black balled” by her co-workers, receiving inappropriate comments from other officers, failing to receive proper back-up from the proposed personal respondent’s friends, and being told not to raise complaints or create problems. Other allegations in support of the poisoned working environment include comments and behaviour made by her co-workers that are not related to her relationship with the proposed personal respondent. In most of the paragraphs in which the applicant alleges she has been subjected to a poisoned working environment, the identity of the alleged offenders is not provided.

49In her Application, specifically in the representative’s interview notes and the applicant’s corrections, she alleges that she was subjected to a poisoned working environment as a result of the harassment, without identifying the alleged harasser(s), and provides some particulars about the poisoned working environment.

50The applicant’s RFOP references the alleged poisoned working environment only in relation to Peel disregarding her complaints about harassment and discrimination, which contributed to a poisoned working environment.

Analysis

51In the Interim Decision, in directing the applicant to file a proposed amended Application, the Tribunal noted that her RFOP, in which she stated that she was planning to amend her Application, contained very few particulars.

52In the proposed amendments, there are approximately 12 paragraphs in which the applicant alleges that she was subjected to a poisoned working environment. Of those 12 paragraphs, there are only 4 in which individuals are specifically identified. The remaining allege, for example, that “two constables” made inappropriate comments on March 15, 2009 (para. 19), on March 28, 2009 she “spoke with a constable” (para. 21), on May 29, 2009 she “had a conversation with another constable” (para. 24), and “a number of co-workers” developed a vendetta against her arising out of her relationship with the personal respondent with the applicant’s days being “marred with employees making sexual and insulting comments…” (para 36).

53Although the applicant alleges in her Application that she had been subjected to a poisoned working environment, I am not prepared to allow the applicant to rely upon the allegations contained at paras. 13, 19, 20, 21, 26, 28, 33, and 36. Given that the Tribunal had directed the applicant to file her proposed amendments, rather than the applicant filing those on her own initiative after filing her RFOP, if the Tribunal permitted the applicant to amend her Application to include the above-mentioned paragraphs, it would need to direct the applicant to provide further information about the identity of the alleged offenders in order for Peel to be in a position to respond to these specific allegations. This would further prolong the determination of the possible amendments of the Application, and accordingly, in the interests of fairness and expediency, I am not prepared to extend any further time to the applicant to provide further particulars about her proposed amendments.

54With respect to the proposed amendment in para. 22, the applicant alleges that she was often paired up with either Constable Utigard or Constable Strangio. It appears from this paragraph that she objected to this pairing “due to the previous incidents of harassment existed with these two officers” and objected to this pairing with her Sergeant. The “previous incidents of harassment” pertaining to these officers is not set out in the proposed amendments, although there is another incident with Constable Utigard and Constable Strangio referenced in para. 25 and a reference to Constable Strangio in para. 27.

55With respect to paras. 22, 25 and 27, I do not see how these allegations are part of a poisoned working environment, but instead are new and separate allegations against Constable Utigard and Constable Strangio. Neither constable is named in the Application, and the incidents described in paras. 22, 25 and 27 are not referenced in the Application. It appears that the allegations against them are untimely.

56However, I do not need to determine if the allegations in paras. 22, 25 and 27 are untimely as I deny the applicant’s proposed amendments with respect to these paragraphs. Again, these are so different from the nature of the allegations in the Application that it would be unfair, at this point, to require Peel to respond to these allegations.

57Similarly, the allegations contained in para. 23 also appear to be a new allegation about Constable Dias and it also appears to be untimely. Constable Dias is not mentioned in the Application and neither is the incident described in para. 23. As this appears to be a new allegation against someone not previously identified, and therefore different from the nature of the allegations in the Application, I deny the proposed amendment in para. 23.

Peel’s Failure to Conduct a Reasonable Investigation

58The applicant alleges in the proposed amendments that she told a number of individuals, including senior officials, within Peel about her allegations of harassment and about the proposed personal respondent, but they failed to take her complaints seriously, failed to investigate her allegations, and failed to transfer her. She alleges that since filing her Application, she has met twice with Internal Affairs, which has refused to provide her with copies of audio tapes and has conducted interviews in an “oppressive manner” designed to discredit her and silence her as a woman.

59In her Application, there are references to the applicant raising her harassment allegations with senior officials within Peel, and others, including OPS. She alleges that the senior officials failed to take her concerns seriously and that she was “punished” for raising these issues. She also alleges that no “real investigation” was conducted by Peel and others.

60In her RFOP, the applicant claims that she raised her concerns with senior officials within Peel, but that they disregarded her allegations.

61In its submissions, Peel notes that the applicant has met with Internal Affairs in relation to being harassed, although her allegations with them differed from the allegations set out in her proposed amendments.

Analysis

62I will allow the applicant’s allegations, as set out in paras. 14, 16, 17, 24, 31, 35, 38, and 40 as the applicant has consistently claimed that Peel has not investigated her concerns. While there may be a delay issue with paras. 14 and 16, as these allegations are from 2008, this can be addressed during the preliminary hearing into these allegations.

63Peel will have an opportunity to file an amended Response responding to these new allegations, however, it is not required to do so until after the delay and summary hearing issues, identified above, are addressed.

Allegations About Disability

64In her proposed amendments, the applicant alleges that Peel discriminated against her on the ground of disability and failed to accommodate her shoulder injury. She also alleges that Peel perceives her to have a mental health condition, which she denies, such that she has been off work since January 2010. She describes her condition during 2010, her attempts to return to work, and alleges that Peel has failed to accommodate.

65In her Application, the applicant also alleges discrimination based upon disability. In material that she filed subsequent to filing her Application, she states that after returning to work in April 2010, she was given a letter granting her approved time off and she objected to her use of force options being removed from her locker while she was off work.

66In the RFOP, the applicant provides some particulars about her allegations of discrimination based upon disability or perceived disability. Some of the particulars in the RFOP are the same as those in the proposed amendments.

67Peel submits that the applicant significantly expands upon her allegations about its failure to accommodate and purports to plead new allegations arising after her Application. It objects to the applicant amending her Application in this regard.

Analysis

68I will allow the applicant’s allegations pertaining to disability and perceived disability as set out in her proposed amendments. The applicant has consistently made allegations that she has been discriminated against on the grounds of disability and perceived disability, this is an ongoing issue, and Peel is not alleging, with respect to this issue, that it is prejudiced. Accordingly, the applicant’s allegations as contained under the heading “Disability based on Shoulder Injury and Disability based on perceived mental disability – Paranoid Personality Disorder” in the applicant’s proposed amendments are permitted.

69Peel will have an opportunity to file an amended Response regarding the applicant’s disability allegations; however, it is not required to do so until after the delay and summary hearing issues, identified above, are addressed.

Reprisal

70In the proposed amendments, the applicant alleges that she has been retaliated against in four ways: by the proposed personal respondent in forcing her into an unwanted relationship and his subsequent abusive behaviour; the conduct of Constable Montclair in sending her hostile emails making her scared and apprehensive at work; Peel questioning her fitness to be issued a firearm; and Peel engaging in a course of conduct designed to prevent her from returning to the workplace after filing an Application.

71In the material attached to her Application, the applicant generally alleged that she was reprised against when, without notice, Peel removed her use of force options.

72Peel submits that the nature of the applicant’s reprisal allegations has changed between her Application and the proposed amendments and it objects to the amendments.

Analysis

73The applicant’s allegations as set out in her proposed amendments about reprisal as against Peel are allowed. The applicant has consistently alleged that she has been reprised against in the materials that she has filed. To the extent that there is inconsistency between her Application and the proposed amendments with respect to reprisal allegations, this may become a credibility issue during the applicant’s evidence.

74Peel will have an opportunity to file an amended Response regarding the applicant’s disability allegations, however it is not required to do so until after the delay and summary hearing issues, identified above, are addressed.

Remedies

75In her Application the applicant marked off that she was seeking a financial remedy, but she did not set out any figure. Instead, she wrote, “I would like to know if there will be any Criminal Charges laid if found that any Criminal activity has taken place”. In her proposed amendments, the applicant marked off that she is seeking monetary compensation in the amount of $130,000 on the basis of “Monetary Compensation for Injury to Dignity, Feelings and Self-Respect”, “Loss of Income including overtime” and “Legal Fees”. She did not specify the exact amounts under these different headings.

76Despite the fact that the applicant did not provide a detailed breakdown on how she arrived at the $130,000 figure, the Tribunal will permit her to amend her Application on this basis. The Tribunal notes that its case law has stated that it does not have the jurisdiction to award legal costs. See, for example, XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 at para. 284.

77Peel will have an opportunity to file an amended Response regarding the remedies the applicant is now seeking. However, it is not required to do so until after the delay and summary hearing issues, identified above, are addressed.

Next Steps

78The Tribunal will schedule a half-day teleconference call to hear the applicant’s submissions about:

• her reasonable prospect of success against:

o PRPA;

o paras. 30 and 32 as against the proposed personal respondent; and

o para. 15 as against Constable Montclair;

• the timeliness, including any good faith explanation, of:

o paras. 15 and 16 against Constable Montclair; and

o paras. 14 and 16 in telling senior officers about her complaints.

79Following the teleconference call, Peel and PRPA, if the Application continues against it, will be given a period of time in which to file an amended Response.

Order

80The Tribunal orders:

1. The applicant’s request to amend her Application is allowed to include paras. 14, 15, 16, 17, 24, 30, 31, 32, 35, 38, 40, 41-63, 64-66, 67-71 and her requested remedies of the proposed amendments.

2. The applicant’s request to amend her Application is denied with respect to paras. 5-13, 19, 20, 21, 22, 23, 25, 26, 27, 28, 33, 36 of the proposed amendments.

3. Within 14 days of the date of this Interim Decision, the applicant is directed to file with the Tribunal and deliver to the respondents:

a. the dates of the allegations in paras. 65(a) and (b) of the proposed amendments, and any submissions that she wishes to make pertaining to delay, including good faith, about these paragraphs as well as paras. 14, 15, and 16.

4. The respondents have seven days after receipt of the applicant’s para. 3 a. submissions to file any response submissions; and

5. The parties shall deliver to each other and file with the Tribunal any submissions, including any case law, that they intend to rely upon at the conference call no later than 14 days prior to the teleconference.

81I am not seized.