Bethune v. K.A.S. Personnel Services Inc., 2013 HRTO 1054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Bethune

Applicant

-and-

K.A.S. Personnel Services Inc.

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: June 12, 2013

Citation: 2013 HRTO 1054

Indexed as: Bethune v. K.A.S. Personnel Services Inc.

WRITTEN SUBMISSIONS

John Bethune, Applicant

Self-represented

K.A.S. Personnel Services Inc., Respondent

Costa Schizas, 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. The Application is scheduled to proceed to a hearing on July 22, 2013.

Background

2The respondent KAS Personnel Services Inc. (the “respondent employer”) filed a Response denying the allegations in the Application. The respondent employer in its Response identified the Teamsters Local Number 419 (the “Union”) as an additional respondent and requested that the Tribunal dismiss the Application under s. 45.1 of the Code on the basis that another proceeding has appropriately dealt with the substance of the Application. The respondent employer has alleged that the Union investigated the alleged incidents and that the union has not filed a grievance on behalf of the applicant.

3The Union has filed a Response denying that it is a proper respondent in this case and that there are no facts which would support a prima facie case of discrimination against it. The Union also opposes the respondent employer’s Request to dismiss. The Union has also filed a Request to Intervene in the Application.

4The applicant filed a Reply in which it is his position that the Union is a proper respondent in the Application. He also opposes the respondent employer’s Request to dismiss.

5A conference call hearing was convened in order to hear the parties’ submissions on the s. 45.1 issue, whether there is any reasonable prospect of success in respect of any allegations against the union and, finally, on the union’s intervention request.

6Following the conference call hearing, an Interim Decision was issued denying the respondent employer’s request to dismiss pursuant to section 45.1, dismissing the Application as against the union on the basis that there was no reasonable prospect of success and granting the union intervenor status (2013 HRTO 4).

7The applicant has now filed a Form 10 Request for Order in which he seeks to amend his Application to include additional and specific remedies against both the respondent employer as well as the union which has been removed as a respondent. Although he does not formally seek an order to this effect, he asks in the body of the Request for Order for production of certain documents from the union.

8The respondent employer has filed a Form 11 in which it does not appear to oppose the applicant’s request to amend his Application and, instead, provides a further Response to allegations made both in the original Application as well as the proposed amended Application.

9The union sent correspondence to the Tribunal with a copy to the parties on March 14, 2013, providing a copy of its arguably relevant documentary disclosure package. It also sought clarification about the balance of the applicant’s request for order and pointed out that it was no longer a named respondent pursuant to the Tribunal’s earlier Interim Decision. Subsequently, the union has clarified that it is no longer the bargaining agent for employees of the respondent employer and, as such, does not seek to intervene further in the proceedings.

Request to Amend Application

10In considering 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; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

11The remedial amendments proposed by the applicant include additional remedial relief in the form of lost income calculations and general damages. Given the nature of the amendments sought and the materials filed in response by the respondent, I see no reason to deny the request to amend the monetary remedy sought as against the remaining respondent, K.A.S. Personnel Services Inc..

12This amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding the issue of remedies.

13Insofar as the amendment request discusses remedial relief as against the union, it is denied. The Tribunal’s previous Interim Decision (2013 HRTO 4) clearly dismissed the Application as against the union as having no reasonable prospect of success.

Reference to Production of Documents

14In my view, it is unnecessary for me to address the reference to the production of documents contained in the body of the materials filed in the Request for Order. The applicant does not seek an order for production of documents. The focus of the Form 10 is his request to amend his Application. While there is a fleeting reference to his desire to obtain “record of minutes from the union”, there is no clarity about the specific documents to which he refers, no indication that he has communicated any such request to the respondent or his former union, and no information about any response received from them. There is also no indication that the documents may be arguably relevant to the issues before the Tribunal.

15Given the union’s indication that it does not seek to intervene further, the Tribunal will not provide any further notice to it with respect to this Application and the parties need not copy the union going forward.

16The applicant’s request to amend the Application is granted in part.

17I am not seized.