HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Tiller

Applicant

-and-

Toyota Motor Manufacturing Canada Inc.

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: July 3, 2013

Citation: 2013 HRTO 1154

Indexed as: Tiller v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Susan Tiller, Applicant

Self-represented

Toyota Motor Manufacturing Canada Inc., Respondent

Ted Kovacs, Counsel

[1] The applicant filed this Application on December 5, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of sex. The applicant alleges that she was subjected to unfair treatment and a poisoned work environment because of her gender.

[2] The respondent filed a Response on February 12, 2013, denying the allegations of sex discrimination. The respondent alleges that it had concerns regarding the applicant’s work performance and provided the applicant with training. The respondent asserts that, since the applicant was a fixed-term contract employee, it chose not to re-hire her because the performance issues.

[3] The applicant filed a Reply on March 5, 2013, reiterating her allegations that she was subjected to unfair criticism because of her gender and providing further details.

[4] On June 3, 2013, the applicant filed a Request for Order (“Request”) seeking to amend the Application to add the ground of disability. The applicant states she seeks to add disability discrimination based on an ongoing anxiety disorder that progressed during her final year of work. The applicant further states that she has documentation indicating that she was working with her doctor to form a solution and that the anxiety was affecting her performance at work.

[5] The respondent filed submissions on June 17, 2013, opposing the Request. The respondent asserts that, prior to this Request, which was filed after the close of the parties’ pleadings, the applicant never alleged a breach of the Code based on disability. The respondent notes that a hearing date is scheduled and that it has provided its disclosure, but the applicant has not filed her arguably relevant disclosure. The respondent submits that the Request fails to establish or plead any allegations that would support a prima facie case of discrimination.

DECISION

Arguably Relevant Disclosure

[6] The Tribunal’s Notice of Confirmation of Hearing (“Notice”) was sent to the parties on March 25, 2013. The hearing is scheduled for mid-November 2013. The Notice summarized the requirements of Rule 16 of the Tribunal’s Rules of Procedure (“Rules”). The respondent indicates that it complied with its disclosure requirements under Rule 16.1.

[7] The applicant has not complied with her obligations under Rules 16 to deliver a list and copies of her arguably relevant disclosure to the respondent and file with the Tribunal confirmation of the list.

[8] In Smith v. Camis, 2012 HRTO 1199, the Tribunal explained, at para. 5, that “[i]t is important for parties to adhere to the Tribunal’s Rules regarding disclosure so that each party is properly apprised of the case it has to meet and so that the Application may proceed in a timely and fair manner to a full hearing.”

[9] As such, the Tribunal directs the applicant to promptly comply with her disclosure obligations as required by the Tribunal Rules.

Request to Amend

[10] In 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 respondent: see, for example, 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.

[11] I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of disability.

[12] The applicant submits that she did not originally include disability because of her “oversight” that anxiety disorder “was a recognized disability”. Having reviewed the applicant’s materials, it appears that the applicant’s Request to add disability seeks to confirm allegations regarding her anxiety disorder which were raised in her Application and Reply.

[13] In response to Question 8 of the Application, the narrative includes the allegation that the unfair treatment caused the applicant mental stress which in turn affected her work performance. In response to Question 9, which queries the effect of the alleged events, the applicant noted that in the last year of her employment she had to take five mental health days and previously her absences were never stress related.

[14] In her Reply, the applicant also alleged that she had an informal discussion with her team leader regarding how she was experiencing anxiety caused by the poor performance review and how this was causing her to lose focus resulting in quality problems. The applicant claims she left the conversation with the understanding that she was “‘heard’”. The applicant further alleged that she missed work due to medical reasons which were related to her “personal issues” and that she provided a doctor’s note.

[15] I do not agree with the respondent that it is too late for such an amendment to be granted. I note that there is sufficient time prior to the commencement of the hearing for the parties to exchange amended pleadings and that Rule 17 disclosure has yet to occur. With respect to the respondent’s contention that the applicant’s disability discrimination allegation fails to satisfy a prima facie case, this argument can be addressed at the beginning of the hearing. As such, I am not satisfied that there significant prejudice in being called upon to respond to the allegation of disability discrimination.

[16] I do however, agree with the respondent that the applicant should provide specific particulars about what exactly she is claiming constituted the alleged disability discrimination. The applicant is required to provide a concise statement of her disability-related allegations.

[17] This amendment is made without any indication or determination by the Tribunal as to the merits of the allegations, and without prejudice to any position the respondent may wish to take regarding the issues at the hearing.

DIRECTIONS

[18] The applicant’s Request to amend the Application to add the ground of “disability” is granted. Within seven days of the date of this Interim Decision, the applicant must file with the Tribunal, copied to the respondent, a concise and comprehensive statement of her disability-related allegation, including what happened, who was involved, when it happened and where it happened.

[19] Within 14 days of the date of this Interim Decision, the applicant must deliver to the respondent a list and a copy of all arguably relevant documents, including in relation to the above-noted amendment. The applicant must also file with the Tribunal a copy of the list of arguably relevant documents. The applicant must file a Statement of Delivery confirming the materials were delivered to the respondent.

[20] The respondent may file an amended Response within 35 days of date of this Interim Decision and the applicant may file an amended Reply within 14 days from receipt of the Response.

[21] The Tribunal will consider the parties’ materials and may provide further directions, determine any issues and future steps accordingly.

[22] I am not seized.

Dated at Toronto, this 3rd day of July, 2013.

“Signed by”

Ena Chadha

Vice-chair