Mike D’Ermes v. Enbridge Gas Distribution Inc., 2013 HRTO 2098

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mike D’Ermes

Applicant

-and-

Enbridge Gas Distribution Inc.

Respondent

INTERIM DECISION

Adjudicator: Daniel Randazzo

Date: December 19, 2013

Citation: 2013 HRTO 2098

Indexed as: D’Ermes v. Enbridge Gas Distribution Inc.

APPEARANCES

Mike D’Ermes, Applicant ) Richard Miller, Counsel

Enbridge Gas Distribution Inc., Respondent ) Ben Aberant, Counsel

1This Interim Decision addresses two Requests for Order During Proceedings filed by the Applicant.

2The Applicant alleges discrimination in employment on the basis of family status. The Applicant alleges that he applied for employment with the respondent, participated in the hiring process and was offered a position. Prior to accepting the offer of employment, he advised the employer that he would in the near future require time off for a parental leave. The offer of employment was eventually revoked and the applicant alleges that the reason the respondent revoked the offer of employment was due to the fact that he was going to take a one month parental leave.

3This matter was scheduled for hearing on December 6, 2013. Prior to the commencement of the hearing, the applicant filed three Requests for Order During Proceedings (“RFOP”). The first RFOP was filed on October 8, 2013 and raised a request for the production of documents. The parties were able to resolve the issues raised by the October 8, 2013 RFOP prior to the hearing. In the second RFOP, filed on November 14, 2014, the applicant sought to amend his Application. For the reasons given below, I grant the applicant’s request to amend his Application. The third RFOP, filed on November 25, 2013, requested further particulars (more particularized witness statements) and further production of documents. The parties were able to resolve the issues surrounding the applicant’s requests for further production of documents prior to the hearing. However, at the time of the hearing, the applicant’s request for more particularized witness statements had not been resolved. Although at the hearing the respondent raised concerns over the timeliness of the applicant’s request (the applicant had filed the request less than two weeks prior to the hearing), the respondent consented to the filing of more detailed witness statements. I add at this point that the hearing was ultimately adjourned to accommodate the applicant’s emergency family medical issue. At the time of the adjournment, the only issue left to be determined was the applicant’s request to amend its Application.

REQUEST TO AMEND APPLICATION

4On November 14, 2013, approximately three weeks prior to the hearing, the applicant sought to amend its Application by seeking to amend the remedies section of the Application. The applicant’s request to amend seeks the following amendments to the remedies section:

a) To include a request for $12,000 for injury to dignity, feelings and self-respect as a result of the discriminatory revocation of the offer of employment;

b) To include a request for $7,500 for injury to dignity, feelings and self-respect as a result of the failure of the Respondent to conduct a reasonable investigation into his complaint of discrimination;

c) To include a request that the Respondent will hire an independent human rights expert to provide training regarding discrimination based on family status in compliance with the Code.

d) To include a request that the Respondent will hire an independent human rights expert to provide training on how to conduct internal investigations relating to claims of discrimination that are in compliance with the Code.

e) To include a request that the Respondent will hire an independent human rights expert to develop a human rights policy as well as a complaints and investigation procedure that complies with Ontario Human Rights Commission guidelines.

f) To include a request that the Respondent will hire an independent human rights expert, at its own expense, to provide training on the policy to all managers, supervisors and staff at the Toronto (500 Consumers Road) office.

5This Interim Decision addresses two Requests for Order During Proceedings filed by the Applicant.

6In his written request and at the hearing, the applicant argued that Rule 1.7 of the Tribunal’s Rules of Procedure allows the Tribunal to amend any filing. The applicant also argued that the Tribunal has, on many occasions, granted similar amendments. The applicant relied upon Jones v. Bridal Classics Inc., 2012 HRTO 1112; K.M. v. Sunnybrook Health Sciences Center, 2012 HRTO 1505; Robert v. 289900 Ontario, 2009 HRTO 653; and Jensen v. National Utility Service (Canada) Ltd., 2012 HRTO 280. The applicant argued that the requested amendments did not require a change to the underlying facts as pleaded, did not amend or add any new allegations to which the respondent would be required to file a revised Response and that the proposed amendments would not prolong the hearing in any significant way. The applicant points out and relies upon the fact that the applicant answered question A11 and A12 of Form 1, by stating that he complained about the discrimination and that no investigation was conducted by the respondent.

7The respondent relied upon its written response to the applicant’s request and its oral submissions made at the time of the hearing. At the hearing the respondent consented to five of the six requested amendments leaving only the request for $12,000.00 in damages for the breach of the respondent’s failure to investigate the applicant’s complaint.

8The respondent argued that the request was untimely. The respondent pointed out that although the applicant was initially unrepresented, counsel had been retained for a number of weeks prior to the filing of the request. The respondent relied on Gurofsky v. Toronto District School Board, 2010 HRTO 482 and Linda Labao v. Toronto Police Services Board, 2013 HRTO 474 in support of its position that the request to amend should be dismissed.

9The respondent also argued that if the applicant’s request was granted, it would add a new cause of action, the alleged failure by the respondent to conduct an investigation, to the applicant’s Application. The respondent argued that although the new cause of action is related to the facts already plead it represents a new and distinct allegation and raises new legal principles. If granted the respondent would have to amend its Response, update its list of documents and its list of witnesses and conduct additional research. If the amendment was granted the respondent would require an adjournment of the hearing.

DECISION

10Having reviewed the materials filed by the parties and having considered the parties’ submissions, I grant the applicant’s request to amend its Application.

ANALYSIS

11Rule 1.7 (c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and equitable resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

12In determining whether requests to amend applications will be granted, the Tribunal generally considers the nature of the proposed 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.

13I do not have to determine, at this time, if the proposed amendment is, as characterized by the applicant, merely an amendment to the remedy section of the Application or, as characterized by the respondent, a new cause of action. The applicant, in his Application, raised the allegation that the respondent did not investigate his complaint of discrimination. Although the applicant has not provided an abundance of particulars with respect to this allegation, he clearly stated that he complained to the respondent, its HR Advisor and Labour Relations officer and that no investigation was undertaken. The requested amendment relates directly to this allegation contained in the applicant’s Application. Furthermore, as in Gurofsky v. Toronto District School Board, supra, I am prepared to hear from the parties as to whether the respondent had an obligation under section 5(1) of the Code to respond to the applicant’s concerns and if so, what that obligation was.

14Although the requested amendment was filed late and the timing of the request is a factor considered in determining whether to grant an amendment, the hearing of this matter was adjourned for reasons unrelated to the applicant’s request. The adjournment was ultimately granted to accommodate the applicant’s family medical emergency. The timing concerns and concerns of prejudice raised by the respondent, such as the need to amend its Response, and file additional documents and witness statements, have been remedied by the need to adjourn the hearing to accommodate the applicant’s family medical emergency.

ORDER

15The Tribunal allows the applicant's request to amend its Application. The respondent, should it choose to do so, is given until January 24, 2014 to file an amended Response to the Application. The respondent is also given until January 24, 2014 to file amended and/or additional witness statements.

16The parties are advised that the Registrar will contact the parties to schedule two (2) days for the hearing of this matter. Finally, the Tribunal reminds the parties of their obligation to become prepared to commence the hearing of this matter on the dates that it is rescheduled.