HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Caroline Bigelow
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Bigelow v. Toronto District School Board
WRITTEN SUBMISSIONS
Caroline Bigelow, Applicant
Mindy Noble, Counsel
Toronto District School Board, Respondent
Gail Geronimo, Counsel
Introduction
1The purpose of this Interim Decision is to address the applicant’s request to amend the Application including adding a personal respondent.
2The applicant filed an Application on December 10, 2012, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability.
3The applicant is a secondary school teacher working at Lawrence Park Collegiate Institute (“Lawrence Park”). The applicant began a medical leave in March 2012. The Application alleges that during the period April to November 2012 the applicant made multiple requests for accommodation which the respondent refused.
4The respondent denies that it discriminated against the applicant on the basis of disability. It submits that the applicant failed to provide evidence in support of her accommodation requests and that in any event the respondent did take reasonable steps to accommodate a request for accommodation.
5A mediation was held on July 12, 2013 which did not resolve the Application. A hearing has been scheduled for March 3, 4 and 5, 2014.
REQUEST TO AMEND THE APPLICATION
6The applicant filed a Request for an Order During Proceedings (“RFOP”) on September 20, 2013, asking to amend the Application. The applicant requests to amend the Application by 1) adding reprisal as a ground of discrimination; 2) adding her allegations with respect to reprisal; 3) adding the impacts resulting from the alleged reprisal; 4) adding further remedies and 5) adding a personal respondent.
7In the RFOP the applicant indicates that she filed an application with the Tribunal in 2011 as a result of discrimination she experienced at work and that this matter was resolved. The applicant submits that it is as a result of her 2011 application, not the present Application filed in December 2012, that she has been subjected to reprisal.
8The RFOP sets out the applicant’s allegations of reprisal. The RFOP alleges that in February 2013 the applicant indicated to the respondent that her health had improved and she wished to return to her position at Lawrence Heights in February 2013. The applicant applied for a position as a department head at Lawrence Heights and was interviewed, it appears, on four occasions, but did not win the position. The applicant alleges that there were irregularities in the competition process that led her to believe she was being differentially treated and discriminated against. She alleges that the Lawrence Heights principal, Lillian Jovanovic, (the proposed personal respondent) chose not to award the department head position to the applicant despite the applicant’s knowledge and experience as punishment for the applicant having previously asserted her rights under the Code. The applicant further alleges that Ms. Jovanovic prevented the applicant from teaching in her area of expertise (French) and assigned her to teach other subjects notwithstanding that there was a need for French teachers and there were other teachers available to teach the subjects the applicant had been assigned to teach. She alleges that Ms. Jovanovic also treated the applicant differently than other staff (e.g. by not responding to her inquiries unless the applicant also contacts the superintendent). The applicant alleges her work assignment and differential treatment are further acts of reprisal as a result of her 2011 application.
9The respondent filed a response to the RFOP on September 20, 2013 opposing the applicant’s request to amend her Application. The respondent submits that the proposed amendments will not merely significantly widen the scope of the Application but will change the substance of the Application, as it will involve entirely new issues, witnesses and documents that are wholly unrelated to the original Application which involved different issues, witnesses and documents. The respondent submits that allowing the proposed amendments will add additional stages to the proceeding (e.g. the respondent will be required to investigate the allegations, file an amended response and file additional documents) that will affect the respondent’s ability to prepare for the hearing that has already been scheduled. The respondent submits it may also require that the hearing be rescheduled which would not be conducive to resolving this case in a fair, just and expeditious manner.
DECISION
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(s). See, for example, 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. The Tribunal is also guided by what would be most fair, just and expeditious in the circumstances.
11The applicant’s request to amend the Application is denied. In my view the allegations the applicant wishes to add to her Application are substantial in nature and would decidedly broaden the scope of the hearing. Moreover, these allegations are wholly unrelated to the original Application which relates to events that occurred during a different time period, that involved different respondent staff and different issues.
12The Application alleges that the applicant was subject to discriminatory treatment between April and November 2012 when the respondent failed to accommodate her return to work. The proposed amendment is to include allegations principally related to unfair treatment in job competitions and job assignments in March and April 2013. The allegations the applicant seeks to add to the Application are in relation to the conduct of specific staff at Lawrence Heights including Ms. Jovanovic who appears to have only been peripherally involved in the allegations in the Application about the failure to accommodate the applicant’s return to work. Furthermore, the applicant is not alleging that the actions of Ms. Jovanovic and others in 2013 was in reprisal for the applicant having pursued her rights under the Code in relation to her return to work in 2012 or for the applicant having filed her Application with the Tribunal in December 2012. Rather the allegations the applicant asks to add to the Application are apparently allegations of reprisal for the applicant having filed some other application with the Tribunal in 2011. Given these circumstances I see no substantive connection between the allegations the applicant wishes to add to her Application and those in the Application that would warrant allowing the applicant’s request to amend. This decision includes denying the applicant’s request to add Ms. Jovanovic as a personal respondent given that this request is based solely on Ms. Jovanovic’s role in events that occur after February 2013.
13The RFOP is also made less than five months prior to the scheduled hearing. In my view, the time available for the respondent to investigate these further allegations, file an amended Response and to prepare further witnesses and documents in response to these further allegations prejudices the respondents. It may also require that the hearing be adjourned. In my view it would not be fair, just or expeditious to allow the applicant’s request to amend.
14I am not seized of this matter.
ORDER
15The applicant’s request to amend the Application is dismissed.
Dated at Toronto, this 11th day of October 2013.
“signed by”
Eric Whist
Vice-chair