HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Timothy Moir
Applicant
-and-
Essex Powerlines Corporation
Respondent
INTERIM DECISION
Adjudicator: Leslie Reaume
Date: June 19, 2013
Citation: 2013 HRTO 1084
Indexed as: Moir v. Essex Powerlines Corporation
WRITTEN SUBMISSIONS
Timothy Moir, Applicant
Craig Flood, Counsel
Essex Powerlines Corporation, Respondent
Guiseppe Barile, Counsel
Introduction
1This is an Application filed under s. 34 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. This Interim Decision deals with the applicant’s Request to amend the Application.
2Rule 1.7(c) of the Tribunal’s Rules of Procedure (“Rules”) 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”.
3The respondent does not oppose the proposed amendments contained at paragraphs 1, 2, 3(b), 4, 5, 6, 7, 14 through 23 in Scheduled “B” of the applicant’s Request. The proposed amendments set out in these paragraphs appear to add further particulars to the allegations already advanced in the Application.
4The respondent opposes those proposed amendments contained at paragraphs 8 through 13 in Schedule “B” of the Request through which the applicant seeks to add the ground of reprisal to his Application.
5In 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.
6I am satisfied that the applicant should be permitted to amend the Application to add those amendments which are not opposed by the respondent, namely paragraphs 1, 2, 3(b), 4, 5, 6, 7, 14 through 23 in Scheduled “B” of the applicant’s Request.
7With respect to the reprisal allegations, the applicant alleges that in the context of prior proceedings and negotiations between the parties, the respondent rescinded a proposed settlement offer after the applicant filed his Application to the Tribunal. The applicant alleges that the refusal to continue those negotiations is an intentional act of reprisal against the applicant for filing an Application with the Tribunal.
8Given the nature of the reprisal allegations, they could not have been included in the original Application. The Request was filed before the parties engaged in mediation and as a result, I would not conclude that there is any prejudice to the respondent as it relates to the timing of the Request.
9However, this is not a situation where one of the parties produced a document or made a damaging admission during the course of mediation which the other party is seeking to introduce in a separate proceeding before this Tribunal. The alleged reprisal is the failure to continue negotiations in one forum after the filing of a human rights application in another. In general, parties are free to negotiate with one another, to make offers, to rescind offers where permissible by law, and to change their mind about whether or not they wish to negotiate at all. The applicant’s request also raises concerns about the confidentiality associated with negotiations which have taken place in another forum.
10In my view, the question whether the reprisal section of the Code is broad enough to encompass the circumstances of this case, should be decided on the basis of evidence.
11I have considered whether it would be appropriate to hear evidence from the parties in order to resolve this issue, however, in my view, that approach would unduly delay the resolution of this matter. It would result in a duplication of testimony before two separate adjudicators on issues which overlap with the merits of the Application. In my view, this issue should be determined by the hearing adjudicator who will define the scope of the hearing and have the benefit of considering the evidence.
Order
The Application will be amended to include paragraphs 1, 2, 3(b), 4, 5, 6, 7, 14 through 23 in Scheduled “B” of the applicant’s Request;
The applicant’s request to add the ground of reprisal is deferred to the hearing adjudicator.
12I am not seized.
Dated at Toronto, this 19th day of June, 2013.
”signed by”
Leslie Reaume
Vice-chair