Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2013 HRTO 1756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mitchell Peltier

Applicant

-and-

1243564 Ontario Limited o/a Total Scrap Management and Henry Rivas

Respondents

INTERIM Decision

Adjudicator: Ena Chadha

Date: October 17, 2013

Citation: 2013 HRTO 1756

Indexed as: Peltier v. 1243564 Ontario Limited o/a Total Scrap Management

WRITTEN SUBMISSIONS

Mitchell Peltier, Applicant

Shawn Weston, Representative

1243564 Ontario Limited o/a Total Scrap Management, Respondent

Kathleen E. Andrew, Counsel

Henry Rivas, Respondent

Christa L. Rea, Counsel

INTRODUCTION

1The applicant filed this Application on April 3, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to employment on the basis of disability and record of offences.

2This Interim Decision deals with the corporate respondent’s request to defer; the applicant’s requests to add a respondent party and amend the Application; and whether all or part of the Application is outside of the Tribunal’s jurisdiction because of delay.

3The Application was originally filed as against Total Scrap Management, the applicant’s former employer. In the Application narrative, the applicant self-identifies as having Attention Deficit Hyperactivity Disorder (“ADHD”). The applicant alleges that his supervisor treated him unfairly and subjected him to harassment with respect to his ADHD. The applicant alleges that he complained about his supervisor’s mistreatment to the owner of the respondent company in August 2011, but the harassment continued and his supervisor retaliated against him for voicing his complaint. The applicant indicates that he suffered a workplace shoulder injury in July 2012 and that his supervisor threatened his job because of the injury. The applicant alleges that he was dismissed because of his disability and as reprisal in December 2012.

4The corporate respondent filed a Response on June 4, 2013, denying the allegations. The corporate respondent alleges that the applicant was dismissed because of poor work performance and insubordination. The corporate respondent requested that the Application be deferred pending the completion of an on-going Workplace Safety and Insurance Board (“WSIB”) matter.

5The applicant filed a Request for Order during Proceedings (“RFOP”) seeking to amend the Application to add allegations starting in November 2010; and seeking to add his supervisor, Henry Rivas, as an individual respondent, as well as an Order for particulars.

6In a Case Assessment Direction (“CAD”) issued on September 5, 2013, the applicant was directed to deliver the parties’ pleadings and the other materials in the file to Henry Rivas, as the proposed individual respondent, who was also directed to file his submissions in response to the applicant’s Request. With respect to the corporate respondent’s request that the Application be deferred, the Tribunal directed the applicant to indicate whether or not he intends to take steps to appeal any WSIB decision. The Tribunal noted that the original Application and the proposed amended Application detailed incidents outside of the Code’s one-year time limit. The Tribunal directed the parties and the proposed respondent to file submissions regarding the issue of delay.

7The Tribunal received and reviewed written submissions from the parties and the proposed respondent regarding the above-noted issues.

DECISION

Request to Defer to WSIB

8In his submissions dated September 12, 2013, the applicant confirmed that he does not intend to take steps to pursue an appeal of any WSIB decision. Consequently, there are no concurrent proceedings and, as such, no basis for deferral at this time.

9The corporate respondent’s request to defer this Application is denied.

Request to Add Individual Respondent

10The applicant requests that his former supervisor, Henry Rivas, be added as an individual respondent to the Application. The applicant asserts that there are a plethora of allegations of harassment and demeaning comments by Mr. Rivas detailed in the Application and in the proposed amendments. The applicant argues that, given the nature of the harassment allegations, Mr. Rivas should be named as an individual respondent along with the corporate respondent. The applicant submits that the proceeding will not be further complicated by adding the proposed respondent because Mr. Rivas would, in any event, be the main witness for the corporate respondent.

11The proposed respondent opposes being added as a party to this Application. Mr. Rivas notes that he was personally referred to in the original narrative and could have been named as a respondent party at the time of filing. He argues that the Application ought not now be amended to include him, particularly given the issue of delay. The corporate respondent argues that the applicant’s attempt to amend the Application only after having received its Response is an improper attempt to bolster his case.

12Rule 1.7(b) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add or remove a party. Tribunal jurisprudence holds that the proper analysis for evaluating a request to add a respondent party is the three-part test articulated in the decision of Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

When determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

13I find that there are compelling reasons to add Mr. Rivas as a respondent because his individual conduct is a central issue in the proceeding and the nature of the alleged conduct is such that a remedy may potentially be awarded against him.

14With respect to the first factor of the test, there are clearly facts alleged which, if assumed (without deciding) to be true, could lead to a finding that Henry Rivas breached the applicant’s rights under the Code. Although only three paragraphs in length, the original Application repeatedly referenced Mr. Rivas by name as the key perpetrator of several incidents of alleged mistreatment and name-calling targeting the applicant. The applicant also alleges that Mr. Rivas threatened him and reprised against him for voicing his concerns to the employer in August 2011 to the point of his dismissal in December 2012. The harassment and reprisal allegations ascribed to Mr. Rivas constitute a major and significant component of the applicant’s concerns and, thereby, present a compelling reason to include Mr. Rivas as an individual respondent.

15With respect to the second factor, although the applicant seeks compensation from the corporate respondent, the applicant also expressly stated in the original Application his desire to seek a public interest remedy involving Mr. Rivas.

16In considering whether it would be fair, in all the circumstances, to add the proposed respondent, I note that Mr. Rivas was informed within one year of the last alleged discriminatory event that the Application directly impugns his actions and that the applicant sought to add him as a respondent party. Lastly, Mr. Rivas has not made any submissions indicating that his ability to participate in the process has been prejudiced to any significant degree.

17In conclusion, I find that this is an appropriate case to exercise my discretion to add Mr. Rivas as an individual respondent to the Application. The Application contains numerous claims about Mr. Rivas’s alleged harassing and retaliatory conduct which, if proved, could result in a finding of violations of the Code. The proposed respondent’s alleged harassment and retaliatory conduct are chief claims in the Application and the ability of the applicant to pursue a remedy for these alleged contraventions is also a compelling ground to add the proposed respondent. I conclude that it would not be unfair or unjust in all of the circumstances to add the proposed respondent at this stage of the Tribunal’s proceedings.

18Accordingly, I order that Henry Rivas be added as a respondent to this Application and the style of cause be amended to include his name.

Delay

19This Application was filed on April 3, 2013 and, therefore, any alleged incidents of discrimination prior to April 3, 2012 are untimely. While the original Application narrative spans from April 2011 to December 2012, the applicant’s RFOP seeks to add allegations of discriminatory events starting in November 2010. Both respondents assert that only the original Application is properly before the Tribunal for considering delay.

20For the purposes of determining the delay issue, I accept the respondents’ submissions that the applicant’s Application as it was originally filed should be considered first. To the extent that the applicant’s RFOP seeks to add allegations that fall both within and outside of the Code’s limitation period, the proposed amendments will be considered only once the temporal parameters of what is properly in the Tribunal’s jurisdiction has been established.

21The Tribunal lacks jurisdiction to deal with allegations made in an application filed more than one year after the last discriminatory incident, or a last incident in a series, unless it is satisfied that i) the delay was incurred in good faith and ii) no substantial prejudice will result to any person affected by the delay. Section 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

22The Code requires an individual to act with all due diligence and file an application within one year of the last alleged incident of discrimination or the last of a “series of incidents” of alleged discrimination. As indicated above the alleged incidents of discrimination said to have occurred prior to April 3, 2012 are untimely, unless they are part of a “series of incidents” which is timely.

Original Application

23The first issue to be determined is whether the events alleged in the original Application prior to April 3, 2012 are part of a “series of incidents” that come within the purview of section 34(1)(b) of the Code.

24The narrative in the Application as originally filed alleges Code violations from 2011 to the applicant’s dismissal on December 7, 2012. The narrative has a single reference to harassment that “has been going on from April of 2011”. The narrative details discrimination and retaliation following the applicant’s complaint to the owner of the company in “August 2011”.

25The applicant submits the 2011 allegations are a “series of incidents”. The applicant suggests that the events were on-going incidents of harassment by his supervisor forming a series leading up to his dismissal in December 2012. Both the corporate respondent and Mr. Rivas submit that the alleged events pre-dating the one-year limitation period in section 34 of the Code are statute-barred. They argue the allegations do not constitute a “series of incidents” and the applicant does not have good faith justification for the delay.

26I find that the allegations regarding mistreatment and reprisal following the August 2011 complaint form part of a “series of incidents” connected to the applicant’s dismissal in December 2012. I find the narrative chronology flows from the applicant’s complaint to the employer in August 2011. The applicant alleges that, because of his supervisor’s offensive remarks, he complained to his employer in August 2011 leading to further mistreatment culminating in the dismissal in December 2012, which the applicant contends was both discriminatory and retaliatory. As such, the timely allegations of mistreatment, threats and retaliation in the original Application spring from the applicant’s complaint to his employer in August 2011.

27I conclude the alleged incidents following August 2011 are clearly related events involving both the corporate respondent and individual respondent and are linked to the timely 2012 allegations of disability discrimination and reprisal. Consequently, I am satisfied the Tribunal has jurisdiction over the original allegations from August 2011 and onwards as these events constitute a series of incidents.

Proposed Amendments

28Now, turning to the applicant’s RFOP and request to amend the Application to include allegations about Mr. Rivas’s harassing conduct starting in November 2010, I am not convinced that the allegations from November 2010 to April 2011 constitute a series of incidents related to the alleged disability discrimination and reprisal in 2012.

29In the RFOP, the applicant seeks to include incidents from November 2010 to December 2010 alleging unfair criticism and offensive remarks by the individual respondent. The next alleged incident of harassment is said to have occurred in April 2011. While these allegations appear to be the background to the August 2011 complaint, they are distinct from the applicant’s reprisal and disability discrimination allegations flowing from events that occurred after his August 2011 complaint.

30It appears the 2012 allegations consist of on-going reprisal and discriminatory termination against the backdrop of the supervisor’s alleged persistent harassment. So while a hearing adjudicator overseeing the hearing on the merits may consider whether the applicant can speak about the circumstances prior to August 2011 in order to give context to the timely incidents, I find that the concerns preceding August 2011 are not part of the timely discrimination and reprisal events and, therefore, cannot constitute live allegations.

31In summary, I satisfied that there was a series of incidents for the purposes of section 34(1)(b), but that the series of incidents started in August 2011 and the proposed amendment seeks to include alleged incidents between November 2010 and April 2011 which are untimely.

32As set out above, the Tribunal may consider an otherwise untimely allegation if it is satisfied that the delay was incurred in good faith and the delay will result in no substantial prejudice to any party. If the applicant is unable to establish a good faith explanation there is no need to consider whether there would be substantial prejudice to any party: see, Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579. The Tribunal has held that in order to demonstrate good faith an applicant must provide a reasonable explanation for the delay and show something more than simply an absence of bad faith: see, Reid v. Ontario March of Dimes, 2009 HRTO 2207.

33I conclude that the applicant is not permitted to amend the Application to include allegations for the period from November 2010 to April 2011 because the events are untimely and there is no apparent good faith explanation for the delay. The applicant submits the delay was caused by his mental disability and concentration problems; lack of sophistication and absence of legal advice; and a fear of reprisal. I do not find that these reasons considered separately or together establish good faith.

34The Tribunal has held that ignorance of one’s rights may in some circumstances amount to good faith, though the applicant must also establish that he had no reason to make inquiries about his rights. As the Tribunal stated in Mercer v. Vic Priestly Contracting, 2010 HRTO 707 at para. 10: “[t]he one-year timeframe established by the legislation should provide most individuals, absent exceptional circumstances, ample time to learn about the process if serious inquiries are made”.

35Further, it is not clear to me that the applicant was unaware of his rights. The applicant’s materials indicate that he complained that his rights were being violated and sought assistance from various people, including his mother, doctor, the WSIB, as well as the respondent employer in this regard

36With respect to the applicant’s contention that he lacked knowledge, sophistication and legal advice to pursue a timely claim, Tribunal jurisprudence has held that a lack of legal representation without further reasons, for example some link to a Code-related factor, does not constitute a good faith reason for delay: see, N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282.

37In my view, the applicant has not met the onus to provide a reasonable explanation for the delay. While the absence of legal advice may, depending on the particular circumstances of the case, go to explain the content of an application, the lack of legal counsel alone, without other extenuating circumstances, does not justify delay: see, Moro v. Thames Valley District School Board, 2012 HRTO 436. The applicant has provided no explanation for why he did not seek legal advice at an earlier point in time particularly when he approached others, including his doctor and the WSIB, for assistance.

38In determining whether an applicant’s mental health condition gives rise to good faith, the Tribunal has held that a disability must directly impede the applicant’s ability to file an application. The applicant has not provided any medical evidence to establish that his mental health was so compromised in 2010-2011 that he was unable to make a timely claim. As stated in the Tribunal’s decision in Dionne v. Toronto (City), 2011 HRTO 317, although the Tribunal accepts that a delay may be in good faith because of an applicant’s disability, it has consistently ruled that it requires medical evidence that the disability was so debilitating that it prevented an applicant from pursuing his or her Code rights within the requisite period of time. See, also for example, Reid v. Ontario March of Dimes, supra; Downer v. Little& Jarrett, 2010 HRTO 992 and Savage v. Toronto Transit Commission, 2010 HRTO 1360.

39Lastly, the applicant claims that he did not pursue his rights earlier because he feared further reprisal. The Tribunal has held that the fear of reprisal does not generally amount to a good faith basis for delay: see, N.M. v. Ottawa-Carleton District School Board, supra, and Stone v. Millwright Regional Council of Ontario, Local 1592, 2013 HRTO 278. I cannot accept that the applicant’s fear of reprisal impeded his ability to pursue his rights. The materials indicate that the applicant voiced his concerns about his rights, filed WSIB claims, sought third party support, as well as attempted to pursue redress through his employer. The applicant has not explained why he feared filing an application under the Code, but the fear of retaliation did not prevent him from making his WSIB claims. I do not accept that his fear of reprisal justifies the delay in filing a timely application.

40In sum, I am not persuaded that the delay in bringing this Application in relation to the proposed November 2010 to April 2011 allegations was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the events prior to August 2011 are untimely because the applicant’s submissions do not meet the high onus the Tribunal requires to show that the delay was incurred in good faith pursuant to section 34(2) of the Code. Accordingly, I conclude the applicant’s request to amend the Application regarding events prior to his August 2011 complaint to the respondent employer must be dismissed as the proposed allegations are out of time.

Request to Amend

41Rule 1.7(c) of the Tribunal’s Rules of Procedure 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.”

42In the RFOP, the applicant has provided an amended narrative that particularizes his allegations in greater detail setting out specific dates and describing further incidents. Given my findings regarding delay as stated above, I will only consider the proposed timely amendments from the point of the applicant’s August 2012 complaint to his employer and onwards. The proposed narrative indicates that the applicant contacted his employer on August 22, 2011 to complain about the individual respondent’s alleged harassment.

43The applicant submits that the request to amend the Application should be granted because the original Application was prepared by his mother, the Tribunal process is still in the early stages, many of the allegations are still within the one year time limit and the amendments correct erroneous dates cited in the original materials, as well as provide more examples.

44The corporate respondent asserts that it will be prejudiced by the request because it will be forced to produce documents, and have witnesses recall events, “from over 3 years ago”. The corporate respondent further submits that the amendments will expand the scope of the Application and delay the proceedings.

45In determining requests to amend applications, 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. In previous decisions, the Tribunal has allowed amendments to applications, including remedial claims, prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050.

46Approximately two months after filing the Application, the applicant's newly retained representative notified the Tribunal and the corporate respondent of his intention to see to amend his allegations. I am satisfied that the applicant should be permitted to amend the Application to include the proposed amendments from August 22, 2011 and onwards. The applicant did not have legal representation when the Application was filed. Contrary to the respondent’s claim, the alleged incidents are not “over 3 years” old. Some of these allegations were referenced in the original narrative and, as the applicant has asserted, other proposed amendments could proceed by way of a new application as these are within the one-year timeline. I agree with the applicant that it is more expeditious to amend the Application rather than filing a fresh one.

47I do not agree with the respondent that the proposed amendments significantly broaden the scope of the Application. I find that the proposed amended narrative sets out greater details of the incidents referenced in the original narrative and provides particulars of other similar incidents, as well as identifies potential witnesses to the core allegations of discrimination, harassment and reprisal. These additional particulars do not appear to raise allegations or grounds that are distinct from the discrimination, harassment and reprisal detailed in the original narrative, but rather appear to be further examples of the types of concerns raised in the original Application.

48Accordingly, the applicant’s request to amend the Application to add details of the incidents from August 22, 2011 and onwards as set out in the proposed narrative is granted. Lastly, it appears that the applicant has cited the ground of “record of offences” in error. As such, the Application is amended to remove the ground of “record of offences”. These amendments are made without any determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and without prejudice to any position the respondents may wish to take regarding these issues.

ORDERS

49The Tribunal orders as follows:

i. The applicant’s request to add Henry Rivas as an individual respondent is granted. The style of cause is amended to reflect the same;

ii. The Tribunal does not have jurisdiction over aspects of the Application prior to August 22, 2011 and, therefore, will not determine any allegations preceding that date;

iii. The applicant’s request to amend the Application is granted in part. The Application is amended to add the proposed allegations as set out in the RFOP narrative starting from the applicant’s complaint to his employer on August 22, 2011 and onwards. The Application is also amended to remove the ground of “record of offences”;

iv. Within 35 days of the date of this Interim Decision, the corporate respondent may file an amended Response. The individual respondent is directed to file his Response also by this deadline;

v. The applicant may file an amended Reply; and

vi. Given the order with respect to amended pleadings, it is not necessary to address the applicant’s request for additional particulars at this time.

50I am not seized of this matter.