Killeen v. Soncin Construction, 2013 HRTO 350

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Killeen Applicant

-and-

Soncin Construction Respondent

-and-

Labourers’ International Union of North America, Local 183 Intervenor

INTERIM DECISION

Adjudicator: Sheri D. Price Decision Date: February 28, 2013 Citation: 2013 HRTO 350 Indexed as: Killeen v. Soncin Construction

written submissions

David Killeen, Applicant Kristin Bisbee, Representative

Soncin Construction, Respondent Paula Rusak, Counsel

INTRODUCTION

1This Application, filed on January 11, 2012, under s. 34 of the Ontario Human Rights Code, R.S.O. c. H.19, as amended (“the Code”), alleges that the respondent discriminated against the applicant because of disability with respect to employment and reprised against him contrary to s. 8 of the Code.

2The hearing of the Application commenced on December 3 and 4, 2012 and is scheduled to continue on March 5, 2013.

3The purpose of this Interim Decision is to address the respondent’s request that the Tribunal dismiss certain of the applicant’s allegations because it would constitute an abuse of process for the Tribunal to permit the applicant to pursue them and/or on the basis of issue estoppel and/or delay.

4The decision also addresses the respondent’s objection to what it describes as an attempt by the applicant to improperly expand the scope of the Application.

ISSUE ESTOPPEL/ABUSE OF PROCESS

5Before addressing the respondent’s argument that certain of the applicant’s allegations ought to be dismissed pursuant to the common law doctrines of issue estoppel and/or abuse of process, it is helpful to set out some background.

Dismissal of the 2009 Application as Abandoned

6Prior to filing the instant Application on January 11, 2012 (“the 2012 Application”), the applicant filed an Application against the same respondent on April 3, 2009 (“the 2009 Application”). In the 2009 Application, the applicant alleged that, during the period from “November 2008 to January 2009”, the respondent had discriminated against him because of “record of offences” with respect to employment and reprised against him by allegedly “punishing” the applicant “for telling the truth to WSIB”. In the narrative that accompanied the 2009 Application, the applicant alleged that the respondent employer had misled the Workplace Safety and Insurance Board (“WSIB”) about the applicant’s workplace injury (leading it to believe that the applicant was unhurt and at work when in reality he was at home because of his injury and being paid by the respondent employer); and forged his signature on one or more documents provided to the WSIB. In his 2009 Application, the applicant also alleged that the respondent suggested that the applicant was faking his injury and that the respondent’s Health and Safety representative told the applicant to take his shirt off (to show her his injury).

7The respondent filed a Request for an Order during Proceedings asking that the 2009 Application be dismissed on the basis that the allegations in it fell outside the scope of the Code and were not within the Tribunal’s jurisdiction.

8In Interim Decision 2009 HRTO 1785, the Tribunal directed the applicant to explain why he believed the 2009 Application raised issues within the Tribunal’s jurisdiction. In particular, the Tribunal explained that the Application did not appear to allege that the respondent had mistreated the applicant because of his “record of offences”, as that term is defined in s. 10 of the Code; or that the respondent had retaliated against him for one of the reasons set out in s. 8 of the Code, which deals with reprisal. The Tribunal directed the applicant to make written submissions by November 17, 2009 explaining how the 2009 Application raised issues within the Tribunal’s jurisdiction to decide, failing which the Tribunal would assume that the Application had been abandoned and dismiss it accordingly.

9As the applicant did not make submissions by the November 17, 2009 deadline, the 2009 Application was dismissed by the Tribunal as abandoned on December 18, 2009. See 2009 HRTO 2209.

2012 Application is Filed

10The 2012 Application against the respondent alleges discrimination because of disability and reprisal. In particular, the 2012 Application alleges, among other things, that, when the applicant returned to work in or around April 2009, following time off because of a workplace injury, the respondent assigned him a job “doing nothing” most of the time; that the respondent “tried everything” not to let the applicant return to work after improperly sending him home in December 2009; that the respondent only allowed the applicant to return to work in February 2011 because it was “forced” to do so by the WSIB; and that the respondent “got rid” of the applicant as soon as it could by laying him off in August 2011.

Attempt to Revive 2009 Allegations at Hearing of 2012 Application

11Shortly before the hearing, on November 22, 2012, counsel for the respondent wrote to the Tribunal to state that, based on the applicant’s will-say statements and documentary disclosure, it appeared to her that the applicant was attempting to broaden the scope of the 2012 Application to include allegations that formed part of the 2009 Application that had been dismissed by the Tribunal. The respondent took the position that the applicant ought not to be permitted to do this because it would constitute an abuse of process.

12In a November 29, 2012 Case Assessment Direction, I indicated that I did not share the respondent’s concern because the applicant had expressly acknowledged that, although the 2012 Application referred to some of the same facts as the (dismissed) 2009 Application, it was distinct from his 2009 Application and such facts were only included as “background” to his current allegations of discrimination and reprisal.

13However, when I attempted to confirm this with the applicant’s representative at the commencement of the December 2012 hearing, she was reluctant to agree that the applicant sought to adduce evidence of the events referred in his 2009 Application only as background, and seemed to express the hope that the applicant would be permitted to revive his allegations that the respondent had discriminated and/or reprised against him in the manner alleged in the 2009 Application.

14At that point, I determined that I would need to decide the issue. Ultimately, the parties were directed to make written submissions on this and the other issues addressed in this decision.

Analysis

15The respondent submits that the common law doctrines of abuse of process and issue estoppel prevent the applicant from pursuing the allegations contained in the 2009 Application or allegations that his rights under the Code were infringed by the respondent at any point prior to November 17, 2009 (i.e. the date by which the applicant was directed to make submissions explaining how his 2009 Application raised issues within the Tribunal’s jurisdiction.)

16The applicant opposes the respondent’s position. The applicant acknowledges that the 2009 Application was dismissed by the Tribunal as abandoned due to his non-compliance with the Tribunal’s direction to make further submissions explaining how the Application fell within the Tribunal’s jurisdiction. This, however, was due to reasons beyond his control, submits the applicant. In particular, the applicant submits that he was diagnosed with a “Major Depressive Episode” in the spring of 2009, and that he was suffering from that and other mental disabilities at the time that he was being required by the Tribunal to file written submissions explaining how his Application fell within the scope of the Code. The applicant submits that because of his mental disabilities, he felt overwhelmed and was unable to either respond to the Tribunal’s directions or to get the help required in order to pursue his human rights Application. The applicant submits that his considerable difficulty in dealing with a complicated legal matter as a result of his mental disabilities was compounded by the fact that the applicant has difficulty reading and writing. The applicant submits that, because of his mental disabilities and his literacy issues, he was simply incapable of responding to the Tribunal’s 2009 direction, and that is what led to the dismissal of his 2009 Application.

17Against that backdrop, the applicant submits that he should not be prevented from arguing, in the 2012 Application, that the respondent infringed his rights under the Code “before, during and after the 2009 application was filed”, given that the events complained of comprise a “series of incidents” within the meaning of s. 34(1) of the Code, the last of which occurred within the one-year period prior to filing the 2012 Application.

18In the alternative, in the event that the Tribunal is not prepared to permit the applicant to revive his 2009 allegations that the respondent infringed his rights under the Code during the period from November 2008 to April 2009, the applicant submits that the Tribunal ought to permit the applicant to call evidence about what occurred during that time period as “background” information to the allegations in the present Application which stem from “April 22, 2009 to August 12, 2011”.

Issue estoppel

19As noted above, the respondent submits that the doctrine of issue estoppel prevents the applicant from arguing that the respondent infringed his rights under the Code in the manner alleged in his 2009 Application.

20As the respondent correctly points out, in order for the doctrine of issue estoppel to apply, the following three pre-conditions must be met:

1. the same question has been decided in an earlier proceeding;
2. the earlier judicial decision was final; and
3. the parties to that decision or their privies are the same in both proceedings. (Snow v. Honda of Canada Manufacturing, 2007 HRTO 45 at para. 41)

21However, the doctrine of issue estoppel does not automatically apply where the above pre-conditions are met. As the Supreme Court of Canada emphasized in Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, where the pre-conditions for issue estoppel are met, the adjudicator must still determine whether, as a matter of discretion, issue estoppel ought to be applied. In exercising such discretion, the objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in the particular case.

22In this case, the applicant argues, and I agree, that the doctrine of issue estoppel does not apply because all three pre-conditions for the application of the doctrine have not been met. In particular, the first pre-condition – that the same question has been decided in an earlier proceeding – has not been met in this case.

23In this case, the applicant is attempting to have the Tribunal hear and determine the merits of his claim that the respondent infringed his rights under the Code when it did the things alleged in his 2009 Application. These questions were not determined in the Tribunal’s December 2009 Decision, which dismissed the 2009 Application as abandoned. I cannot agree with the respondent that the Tribunal, in dismissing the 2009 Application as abandoned, "decided … that the Applicant did not in fact have any Human Rights Code-related breaches." In dismissing the Application as abandoned, the Tribunal did not dismiss the 2009 Application because it concluded that it lacked merit.

24I agree with the respondent that “a different characterization of the issues and process for analyzing them” does not necessarily mean that the question decided in the earlier proceeding was not the same question. See Rasanen v. Rosemount Instruments Ltd. (1994), 1994 CanLII 608 (ON CA), 112 D.L.R. (4th) 683 at 703. In this case, however, the applicant is not attempting to have the Tribunal decide a differently characterized issue. There was no decision on the merits of the 2009 Application in the earlier proceeding, however characterized.

25For the above reasons, the respondent’s request that the Tribunal find that the doctrine of issue estoppel prevents the applicant from pursuing the 2009 allegations in the present proceeding is denied.

26I now turn to the respondent’s alternative argument that it would constitute an abuse of process to permit the applicant to argue that the respondent infringed his rights under the Code in the manner alleged in the 2009 Application.

Abuse of Process

27Pursuant to s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended, the Tribunal “may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”

28The Ontario Court of Appeal recently revisited the doctrine of abuse of process in Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459. Relying on the Supreme Court of Canada’s leading case, Toronto (City) v. CUPE Local 79, 2003 SCC 63, [2003] 3 SCR 77 (“CUPE”), the Court of Appeal affirmed that the common law doctrine of abuse of process “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”: at para. 32. In determining whether legal proceedings ought to be dismissed as an abuse of process, the question is whether the proceedings would be “oppressive” or “vexatious" or “unfair to the point that they are contrary to the interest of justice": at para. 30.

29In this case, the applicant acknowledges that abuse of process is properly invoked to dismiss proceedings that would bring the administration of justice into disrepute. However, the applicant submits that this is not such a case. On the contrary, the applicant submits that it would bring the administration of justice into disrepute if the Tribunal were not to proceed “with finally hearing the merits of this case.”

30The applicant submits that dismissing an Application as an abuse of process is an “extraordinary remedy” that ought only to be available “where the party requesting it … clearly demonstrate[s] that the balance of convenience overwhelmingly favours the granting of it.” (Fiorini v. DiPoce Management Ltd. (No.2) (1997), CHRR doc. 97-233 (Ont. Bd.Inq.) at para. 16, as cited in Smith v. Menzies Chrysler Inc., 2008 HRTO 37 at para. 27.) Relying on these cases, the applicant submits that the respondent has not met the high onus for establishing that the allegations that were contained in the applicant’s 2009 Application ought to be dismissed in the current proceeding as an abuse of process.

31In support of his position, the applicant relies upon the Ontario Divisional Court’s decision in Hudon v. Colliers Macaulay Nicolls Inc. (c.o.b. Colliers International), [2001] O.J. No. 1588, 147 OAC 163. In that case, the plaintiff had brought a new civil action, based upon the same allegations contained in an earlier action that had been administratively dismissed by the court as abandoned. In Hudon, the Divisional Court rejected the proposition that “the mere commencement of a new action after a first action had been dismissed for delay, without more, constitutes an abuse of process.” On the contrary, the court found that the doctrine of abuse of process did not preclude the plaintiffs from bringing a new action based on the same allegations as a previous one that had been administratively dismissed by the court:

In our opinion, … neither the purpose nor the dictates of the Simplified Rules mandate that a registrar’s dismissal of an action as abandoned, in itself, precludes the commencement of a new action by the plaintiff for the same relief. Barring the intervention of a limitation period, or some other evidence showing that the defendant has suffered serious prejudice flowing from inexcusable delay or flagrant or contumelious behaviour on the part of the plaintiff, a second action may be commenced without appealing the order of dismissal…

32However, in Gagne v. Yee, 2008 CanLII 16201 (ON SC), Master Dash, at para. 19 to 22, noted that the Divisional Court took a different approach than Hudon in its more recent decision in Sider v. Toronto (City), 2008 CanLII 9380. According to Sider, the correct approach for determining whether an action that has been administratively dismissed may be revived is a contextual one that balances the interests of the parties to determine what is just in the circumstances of the particular case. (Sider, above, at para. 11, relying on the Ontario Court of Appeal’s decisions in Scaini v. Prochnicki, 2007 ONCA 63, and Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 (“Giant Tiger”)). The relevant factors to be considered include but are not limited to: the reason for the litigation delay leading to the administrative dismissal of the original claim; whether a deadline was missed through inadvertence; whether the claimant moved promptly to set aside the dismissal order as soon as it came to his attention; and whether the defendants have demonstrated that they would be significantly prejudiced in presenting their case as a result of the plaintiff’s delay or steps taken following the dismissal of the claim: Sider, above, at para. 10; Giant Tiger, above.

33I am mindful of the fact that the above-noted cases deal with the revival of civil actions that have been administratively dismissed by a Registrar, not the dismissal of cases as abandoned by an adjudicator in this particular administrative law context. They are therefore not on all fours with the present case. They do, however, establish some useful principles that, in my view, have application in the human rights context. In particular, the above-noted cases suggest that the Tribunal ought not to conclude that the inclusion in an Application of allegations that have been previously dismissed as abandoned automatically constitutes an abuse of process. Rather, the Tribunal ought to engage in a contextual analysis that takes into account all of the relevant factors and balances the interests of the parties in order to arrive at a just outcome overall. In my view, this is entirely consistent with the Supreme Court of Canada’s ruling in CUPE, above, which establishes that the abuse of process doctrine precludes relitigation that would violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice, while recognizing that fairness may dictate that relitigation be permitted in certain circumstances: CUPE, above, at paras. 37 and 52-55.

34With that in mind, and having carefully considered the matter, I am of the view that, in the particular circumstances of this case, it would be an abuse of process to permit the applicant to revive allegations that were part of the 2009 Application.

35In his written submissions, the applicant emphasizes that the 2009 Application was dismissed as abandoned because his mental disabilities, combined with illiteracy, prevented him from complying with the Tribunal’s October 2009 direction to provide written submissions explaining why the 2009 Application was within the scope of the Code. That may be true. However, assuming without finding that it is true, the applicant’s mental disabilities and/or difficulties reading and writing do not explain the applicant’s failure to attempt to revive the allegations in his 2009 Application until the commencement of the hearing of this Application in December 2012, nearly three years after they were dismissed by the Tribunal as abandoned.

36Even if the applicant was incapable of engaging in litigation because of his mental disabilities or otherwise in October 2009 and for some undefined period afterwards, he was certainly capable of engaging in litigation by no later than January 11, 2012, the date on which he filed the 2012 Application. It seems to me that if the applicant had wished to revive his allegations that the respondent had infringed his rights under the Code in the manner complained of in the 2009 Application, that was the time for him to do it. However, he did not do so. On the contrary, when he filed the instant Application against the respondent in 2012, the applicant expressly stated that he only wished to bring the 2009 allegations forward as “background” to the alleged infringements of his rights under the Code complained of in the 2012 Application. The applicant did not diverge from that path at any point prior to the commencement of the hearing in December 2012. Indeed, as recently as November 26, 2012, the applicant’s representative wrote that, while the applicant proposed to call evidence about some of the events complained of in his 2009 Application, he did “not have the intention of simply resurrecting an old application, as suggested by the respondent.”

37Against that backdrop, in my view, it would be manifestly unfair to the respondent to permit the applicant to revive the allegations made in his 2009 Application. I appreciate that the applicant’s 2009 Application was dismissed as abandoned and not on its merits. However, that does not detract from the fact that the Tribunal’s decision dismissing the 2009 Application was a final one and the parties, particularly the respondent, were entitled to treat it as such. It would be contrary to the principle of finality, “so crucial to the proper administration of justice” (CUPE, above, at para. 38), to expose the respondent to liability, at this point, for matters that were put to rest approximately three years ago. Nor, in my view, is this a case where the bar against relitigation, through the doctrine of abuse of process, creates unfairness to the applicant. (CUPE, above, at para. 53) I appreciate that the principle of finality must sometimes give way to fairness and permit a claim that has been dismissed to be resurrected. In this case, however, I do not think that fairness dictates that the applicant be permitted to revive, at the eleventh hour, allegations that were dismissed by the Tribunal in 2009, particularly in the absence of a reasonable explanation for his failure to make clear his intention to pursue such allegations at a much earlier stage in this proceeding.

38That said, the fact that the applicant is not entitled to pursue the allegations in the 2009 Application that the respondent infringed his rights under the Code does not mean that the applicant is precluded from calling any evidence about the events that are referred to in the 2009 Application. My ruling that the applicant may not pursue the allegations that formed part of his 2009 Application means that the applicant is not entitled to ask the Tribunal to determine whether the respondent infringed his rights under the Code when it acted in the manner alleged in the 2009 Application. It does not mean that no evidence about such events will be admitted into evidence at the hearing of the instant Application. As always, the admissibility of any evidence regarding events referred to in the 2009 Application or otherwise will depend on its relevance to the issues to be determined in the present Application. Such issues will be dealt with if and as they arise during the course of the hearing. However, I would note, by way of clarifying the above point, that evidence of some of the events complained of in the 2009 Application may be relevant to the issues to be determined in this case. For example, evidence about the manner in which the respondent allegedly reacted to the applicant’s workplace injury in 2008 and/or 2009 may be relevant to the allegations of discrimination and reprisal in the 2012 Application, to the extent that it may go to the respondent’s alleged animus towards the applicant.

39Finally, I cannot agree with the respondent that it would constitute an abuse of process to permit the applicant to allege that his rights under the Code were infringed by the respondent at any point prior to November 17, 2009, that is, the date by which the applicant was directed to make submissions explaining why his April 3, 2009 Application fell within the Tribunal’s jurisdiction under the Code.

40First of all, I cannot agree with the respondent’s suggestion that, in directing the applicant to explain why his 2009 Application raised issues within the Tribunal’s jurisdiction, the Tribunal was giving the applicant an opportunity to “correct” or “perfect” that Application by adding factual allegations concerning events that occurred between the date of its filing and November 17, 2009. On the contrary, the Tribunal was directing the applicant to make submissions explaining how the issues raised in the 2009 Application he had filed fell within the scope of the Code.

41In any event, I do not see how the doctrine of abuse of process – focussed as it is on preventing relitigation – leads to the dismissal of claims that were not part of an earlier proceeding. I agree with the applicant’s submission, made in the alternative, that even if the applicant is not permitted to pursue allegations that were part of his 2009 Application (and he is not), there is nothing to prevent him from pursuing alleged infringements of the Code that occurred after he filed his April 2009 Application, provided that they are part of a “series of incidents” that culminated in an incident within the one-year time period before the 2012 Application was filed (addressed below).

42In sum, I find that it would constitute an abuse of process to permit the applicant to argue in this proceeding that the respondent infringed his rights under the Code in the manner complained of in his 2009 Application. The applicant’s allegations that the respondent infringed his rights under the Code in the manner complained of in the 2009 Application are dismissed accordingly. However, this does not preclude the applicant from calling evidence about the events referred to in his 2009 Application, if evidence of such events is relevant to the allegations that are properly before me in the present Application.

43I now turn to the respondent’s objection regarding the scope of the Application. Once I clarify which allegations are within the scope of the Application, I will consider the respondent’s argument that some of them ought to be dismissed on account of delay.

SCOPE OF THE APPLICATION

44The respondent submits that a number of the allegations that the applicant wishes to make in this proceeding were not included in the 2012 Application that was filed and are therefore not properly before the Tribunal.

45In my view, in determining whether certain allegations are within the scope of an Application, the question is whether the allegations have been sufficiently identified in the Application, or perhaps, in the Reply (more on this below). If so, they are within the scope of the Application and properly before the Tribunal, provided that they do not otherwise fall outside the Tribunal’s jurisdiction because of delay, etc.

46I should also point out that, in considering the scope of the Application, the question is whether an alleged infringement of the applicant’s rights under the Code is within the scope of the Application. I say this because, in its written submissions, the respondent argues that the applicant ought not to be permitted to call evidence about any “new facts” that are not mentioned in the Application. In my view, this particular submission, at least as I understand it, misses the mark.

47Although the respondent is entitled to know at the outset the manner in which it is alleged to have infringed the applicant’s rights under the Code, neither party is required to include every relevant fact that may come up at the hearing of an Application in its pleadings, in order to be able to lead evidence about such facts at the hearing.

48Nor would it be appropriate for the Tribunal to make rulings, in advance of the hearing, on whether particular pieces of evidence are admissible. As I have stated earlier in this proceeding, rulings as to the admissibility of the particular evidence that the parties may seek to adduce is a matter best left for the hearing. As always, the admissibility of any evidence sought to be adduced during the hearing will depend, among other things, on its relevance to the issues to be determined; whether the other party is prejudiced by the introduction of such evidence; and if so, whether such prejudice may be cured other than by excluding the relevant evidence.

49Accordingly, other than to make the above point, I do not propose to deal with the respondent’s objection that “new facts” raised in the Reply and/or the applicant’s opening statement or written submissions are outside the scope of the Application.

50I now turn to the more germane issue, namely, the respondent’s argument that certain alleged infringements of the applicant’s rights under the Code are outside the scope of the Application and not properly before me in this proceeding.

Alleged infringements of the Code that are within the scope of the Application

51At the commencement of the hearing of this Application on December 4, 2012, having heard the applicant’s opening statement and reviewed the pleadings, I confirmed with the parties my understanding that the applicant was alleging that the respondent had discriminated against him because of disability and/or reprised against him in the following ways:

a. In and around April 2009, by assigning the applicant work that had little and/or no meaning as a form of punishment/mistreatment;

b. In December 2009, by sending the applicant home on the stated basis that it was not safe to have the applicant at work (because of drugs);

c. During the period from December 2009 to February 2011, by holding the applicant out of work as a reprisal and/or because of the applicant’s workplace injury and/or because of a perceived mental disability (i.e. drug abuse/addiction);

d. During the period from October 2010 to February 2011, by allegedly misrepresenting to the WSIB that it had permanent work available for the applicant when all along the respondent knew that the work in question (as a flagperson) would last only until April 2011, which actions caused the applicant to lose out on retraining opportunities through the WSIB;

e. In February 2011, by assigning the applicant to janitorial duties and by exposing him to daily taunts and harassment from managerial and non-managerial employees;

f. In August 2011, by laying the applicant off to get rid of him, not because there was a real shortage of work;

g. By breaching its duty to accommodate the applicant’s disability-related needs by not providing him work during December 2009 to February 2011; from August 2011 onwards and by not offering the applicant rehabilitation services for a perceived drug problem in December 2009.

52In my view, all of the above allegations are properly before me because they were sufficiently identified in the Application that was filed with the Tribunal in January 2012 or the Reply that was filed in June 2012.

53As the respondent points out, certain of the above-noted items were pleaded only in the applicant’s June 2012 Reply (i.e. to some extent item (d) as well as item (e) and those parts of the allegations that refer specifically to the alleged breach of the duty to accommodate perceived mental disability). However, I am satisfied that the respondent has had sufficient notice of these alleged infringements of the Code and that they are properly before me in this case. In my view, the Reply is part of the pleadings and it is reasonable to expect the respondent to have regard to the pleadings contained in the Reply when determining the case it has to meet. In addition, in this particular case, I note that the Reply was filed within one year of the last incident in the series of incidents to which the Application relates (see my findings on this below). As such, the allegations in the Reply were raised in a timely manner. This is a further reason to conclude that they are properly before me. In the alternative, if necessary, in my view, it would be appropriate to permit the applicant to include the allegations in the Reply as an amendment of the Application. The nature of the allegations is such that they are related to those in the Application insofar as they are further allegations of discrimination because of disability and/or reprisal during the same time period already covered by the Application. In addition, given that the allegations contained in the Reply were made approximately six months in advance of the hearing, I cannot see how the respondent would be prejudiced by their inclusion within the scope of the Application. Nor has the respondent identified any actual prejudice that it would suffer if the applicant were permitted to rely upon the allegations in his Reply. I note that this is consistent with the approach taken by the Tribunal in Bednarski v. Naka Sales Limited, 2012 HRTO 1077 at para. 7.

54The respondent also objects to the applicant’s ability to argue that the respondent discriminated against him based on perceived disability and/or mental disability in respect of the period from December 2009 to February 2011 when it held the applicant out of work based on its stated perception that it would be unsafe for the applicant to be at work, in light of information the respondent had been provided that the applicant had been buying prescription drugs on the street to manage pain associated with his workplace injury and/or had been diagnosed with opioid dependency/abuse. According to the respondent, the Application alleged discrimination on the basis of physical disability only, and it is not open to the applicant to expand the Application to include allegations of discrimination on the basis of perceived and/or mental disabilities.

55In my view, although the words “perceived disability” and “mental disability” may not have been used until the hearing, the central question is whether the allegation that the respondent discriminated against the applicant based on real or perceived drug use/abuse, however characterized, is within the scope of the Application and properly before me. In my view, it is.

56First, the Application itself sufficiently covers this when the applicant pleads (at a time when he was self-represented) that the respondent sent him home in December 2009 saying that the applicant was “on drugs” and a danger on the job site; and kept him off work even after the applicant’s doctor “gave them a list of [his] medications and said [he] was OK to work”.

57Second, the Reply alleges that if the respondent perceived the applicant had a problem with drugs, it was incumbent on the respondent, as part of its duty to accommodate the applicant’s disability-related needs under the Code, to offer him accommodation in respect of that perceived drug problem.

58In any event, even if the respondent were correct that the Application only alleged discrimination on the basis of the applicant’s physical disability, then alleged disadvantageous treatment based on drugs he was taking for pain caused by that physical disability would still, in my view, be within the scope of the Application.

59Finally, to the extent that the respondent submits that the Application alleges “direct” discrimination only and that the alleged failure to accommodate the applicant’s disability-related needs is outside the scope of the Application, I cannot agree. In this regard, I note that, in the Application, the applicant pleaded that the respondent “definitely did not do enough” to meet his needs. Along the same lines, he pleads that the respondent was “forced to take [him] back and they got rid of [him] after five months” and that he was “off work from December 2009 to February 2011 not because [he] needed to be but because the company wouldn’t take [him] back until they were forced by WSIB.” In my view, the alleged failure to accommodate was sufficiently identified in these and other passages in the Application and Reply and is before me in this proceeding.

60In any event, in order for the applicant to make out a prima facie case of discrimination under the Code, he does not need to allege or prove a breach of the duty to accommodate per se. It is enough for the applicant to establish that he has experienced disadvantageous treatment because of his disability. At that point, the onus shifts to the respondent to prove a defence, such as the one contained in s. 11 or s. 17 of the Code, including by establishing that the applicant’s needs could not have been accommodated without undue hardship. See Baber v. York Region District School Board, 2011 HRTO 213 at paras. 88-95; Black v. Etobicoke Ironworks, 2010 HRTO 2082 at paras. 63-65.

Alleged Infringements of the Code that are Outside the Scope of the Application

61By contrast, the following alleged infringements of the Code were not sufficiently identified in either the Application or the Reply, are not within the scope of the Application and are not properly before me in this proceeding:

1. The allegation that, during the period from January 15 to March 12, 2009, the respondent discriminated and/or reprised against the applicant because of disability by failing to offer him appropriate modified work and/or by assigning the applicant work on the “standing lift” and/or “scissor lift”, which he was not certified to operate.

2. The allegation that the respondent discriminated and/or reprised against the applicant during the period from March 12, 2009 to April 28, 2009:

a. on March 12, 2009, by disciplining the applicant for not providing medical information about his injury within 24 hours;

b. on April 22 and 23, 2009, by not giving the applicant a chair following his return to work on April 22, 2009;

c. on April 22, 2009, by falsifying a document saying the applicant had received certain training;

d. on April 28, 2009, by disciplining the applicant for using his cell phone from work (to call WSIB to complain about the chair issue) and submitting such disciplinary information to the WSIB in an alleged attempt to suggest the applicant was not cooperating with his return to work; and

e. on or about May 1, 2009, by refusing to give the applicant a Functional Abilities Form to take to his doctor.

3. The allegation that the respondent discriminated and/or reprised against the applicant by falsifying the applicant’s signature on documents incorrectly indicating that the applicant was performing meaningful and purposeful modified work.

4. The allegation that, in 2009 and 2010, the respondent discriminated and/or reprised against the applicant by rescinding its original decision to pay the applicant his full wages in respect of period from October 24 to December 24, 2008 and demanding that the applicant repay the respondent the difference between his full wages and his WSIB entitlement, as well as the respondent’s WSIB premiums and the Employer Health Tax.

5. The allegation that, on November 13, 2009, the respondent discriminated and/or reprised against the applicant by misrepresenting to the WSIB that the applicant worked 7.5 hours per day on a regular day when he really worked 8.5 hours per day, thereby reducing the amount on which the applicant’s WSIB benefits were based by 5 hours per week.

6. The allegation that the respondent discriminated and/or reprised against the applicant from February 24 to April 28, 2011 by paying him a lower rate than his usual job rate while performing janitorial work.

7. The allegation that the respondent discriminated and/or reprised against the applicant by paying him $1 per hour less than the applicable collective agreement rate which was paid to others employed by the respondent during the period from April 22 to August 12, 2011.

8. The allegation that, from February 24 to April 28, 2011, the respondent discriminated and/or reprised against the applicant by sending him to a course it knew it would be difficult for him to pass, by failing to give him the textbook for such course, and by sending him to a course that was intended for engineers/managers of construction companies.

9. The allegation that the respondent discriminated and/or reprised against the applicant during the period from February to March 12, 2009 by giving the applicant only 23 hours of modified work per week, which resulted in the reduction of the applicant’s WSIB benefits.

62Having regard to the materials before me, I find that the above-noted alleged infringements of the Code were not included in the either the Application or the Reply that the applicant filed with the Tribunal in January 2012 and June 2012, respectively. Nor, in my view, can the above-noted allegations be reasonably regarded as particulars of alleged breaches of the Code that were made in the applicant’s pleadings. On the contrary, the above-noted allegations are fresh allegations of separate Code infringements by the respondent that were not made until the first day of hearing in this matter in December 2012 and/or in the applicant’s written submissions on the respondent’s preliminary objections in January 2013. As such, these alleged infringements of the Code do not fall within the scope of the Application and are not properly before me in this proceeding.

63Nor would it be appropriate to permit the applicant to amend his Application to include such allegations at this juncture.

64In considering requests to amend an Application under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendment, the reasons for the request to amend, the timing of the request to amend and the prejudice to the respondent. 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.

65In this case, given the significant nature (and number) of the proposed amendments and the timing of what is in effect a request to amend the Application, it would not be appropriate to permit the applicant to amend his Application to include the above-noted allegations of discrimination and/or reprisal.

66While the Tribunal will often permit amendments that relate to and/or clarify the allegations contained in the original Application, the Tribunal is generally more reluctant to permit an applicant to amend an Application by adding allegations that are completely new and unrelated to those contained in the original filing, particularly where the applicant seeks to raise, by way of an amendment, allegations that he would be barred from bringing forward in a new application, on account of delay. I am referring here to s. 34 of the Code, which prevents an Application from being filed more than one year after the date of the last event to which the Application relates (s. 34(1)), unless the applicant satisfies the Tribunal that the delay in filing the Application was incurred in good faith (by providing a reasonable explanation for the delay) and that there would be no substantial prejudice to anyone affected by the delay. (s. 34(2))

67Strictly speaking, the one-year time limit in s. 34(1) of the Code applies only to when a person may file an Application with the Tribunal, and not to requests to amend an Application. The Tribunal can, and does, permit amendments to Applications outside of the one-year period contemplated in s. 34(1) of the Code without requiring applicants to satisfy the test under s. 34(2) of the Code. Having said that, s. 34(1) of the Code does reflect the expectation that human rights applicants will bring their allegations forward in an expeditious manner and not unduly delay in alerting respondents to the case against them: Khokher v. Intercon Security Limited, 2011 HRTO 1493; Shakhnazarov v. George Brown College, 2011 HRTO 1917; Anderson v. Stieber Berlach LLP, 2012 HRTO 1471.

68In this case, although the applicant has not specifically said so, he is, in effect, asking to “amend” his Application to include completely new alleged infringements of his rights under the Code that occurred during the period from January 2009 to August 2011. These allegations could have been raised by the applicant in a timely manner (i.e. within one year of his August 2011 layoff) in his January 2012 Application or his June 2012 Reply or in a subsequent, yet timely, request to amend his Application. However, the applicant failed to do this.

69Instead, the applicant did not raise the above-noted allegations that the respondent discriminated and/or reprised against him from January 2009 to August 2011 until December 2012/January 2013, almost four years after the earliest allegations and approximately 16 months after the most recent. Nor has the applicant provided a reasonable explanation for his failure to bring these new allegations forward in a more timely manner. The applicant submits that because of his literacy problems, he did not learn of the fact and/or extent of the above-noted infringements of his rights under the Code until September 2012 when his representative took him through the documents in his file. However, there is no reasonable explanation as to why this could not have been done at an earlier stage. (The representative was retained in May 2012 and presumably could have been retained before that.) Moreover, even if the applicant did not learn of the additional alleged infringements of his rights under the Code until September 2012, this does not explain why he waited until December 2012 and January 2013, when the hearing was already underway, to bring such additional allegations forward.

70To the extent that the applicant alleges that he did put the respondent on notice that he was alleging that they infringed his rights under the Code in the above-noted ways by providing them with documentary disclosure, I cannot agree. Although the respondent ought to have expected that the documents produced could be relied upon in relation to the allegations that the applicant had made, it was not for the respondent to deduce that the applicant was alleging that his rights under the Code had also been infringed in the additional ways identified above, based on its review of the documentary disclosure.

71In sum, the applicant seeks to substantially alter the case against the respondent by adding fresh allegations that are not contained in his original Application or Reply; and he does so at a time when the provisions of the Code would prevent him from filing a fresh Application based on such allegations. In the circumstances, I find that it would not be fair, just and expeditious to permit the applicant to rely upon the above-noted allegations in the present proceeding.

72Again, however, this does not necessarily mean that the applicant is precluded from calling any evidence about the above-noted allegations. As noted above, the admissibility of any evidence regarding the events referred to in para. 61 above will depend, among other things, on its relevance to the issues that are properly before me in the present Application.

DELAY

73Section 34 of the Code provides that a person may file an Application alleging that his or her rights under the Code have been infringed within one year of the incident (or within one year of the last incident, if there was a series of incidents) to which the Application relates. It also provides that a person may not apply to the Tribunal more than a year after the incident to which the Application relates unless the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no one would be substantially prejudiced by the delay.

34. (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.

74In this case, the respondent submits that the Tribunal ought to dismiss, on the basis of delay, any allegations relating to events that occurred more than one year before the Application was filed on January 11, 2012.

75The respondent acknowledges that the allegation that the respondent discriminated and/or reprised against the applicant when it laid him off in August 2011 is timely. Other than that, however, the respondent submits that there are no allegations that are part of a “series of incidents” that culminated in the one-year period prior to the Application being filed.

76In effect, the respondent submits that the allegation that the respondent discriminated and/or reprised against the applicant by allegedly assigning him little or nothing to do upon his return to work in April 2009; and by sending him home in December 2009 and holding him out of work until February 2011 ought to be dismissed on the basis of delay. (I note that the respondent also advanced a delay argument in respect of a number of other allegations that I have already dismissed as an abuse of process and/or found not to be within the scope of the Application. Accordingly, it is not necessary for me to consider whether such allegations ought also to be dismissed on the basis of delay.)

Timeliness of the Allegations

77The first issue to determine is whether there was delay in bringing forward any of the allegations that I have found to be within the scope of the Application. As the respondent correctly points out, this turns on whether any or all of the allegations from April 2009 to February 2011 were part of a “series of incidents” that culminated in the one-year period prior to the filing of the Application. (To be clear, when I refer to “allegations from April 2009 to February 2011” at this juncture, I am referring only to those allegations that I have found to be within the scope of the Application and properly before me, subject to the respondent’s delay argument, i.e. those set out in para. 51 above.)

78The respondent advances two arguments in support of its position that, aside from the August 2011 layoff, none of the applicant’s allegations are part of a “series of incidents” culminating in the one-year period prior to the filing of the Application. I deal with each in turn.

Whether gap of more than one year between alleged incidents interrupts the “series of incidents”

79The respondent points out that alleged infringements of the Code that have occurred more than one year apart are generally not considered to be a “series of incidents” for the purposes of s. 34(1) of the Code: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9; Chintaman v. Toronto District School Board, 2009 HRTO 1225. The respondent submits that there was a gap of more than one year between the alleged infringements of the applicant’s rights under the Code, which serves to “interrupt” the series. In particular, the respondent submits that there are no alleged “incidents” of discrimination and/or reprisal between December 2009 and August 2011, and that any allegations prior to August 2011 are therefore untimely.

80The applicant disputes this. He takes the position that there was a continuing contravention of his rights under the Code from the time he returned to work in April 2009, up until the respondent put him off work on December 9, 2009, continuing throughout the entire period that the respondent kept him off work, up to and including February 24, 2011, at which point the respondent was allegedly “forced” by WSIB to let the applicant return to work. In support of this position, the applicant relies upon the Ontario Divisional Court’s decision in Visic v. Ontario Human Rights Commission, 2008 CanLII 20993 (ON SCDC).

81The respondent disagrees that there was a continuing contravention of the applicant’s rights under the Code during the period from December 9, 2009 to February 24, 2011. The respondent submits that it did not take any “fresh steps” during this period that could be relied upon to found an “incident” of discrimination within the meaning of s. 34(1) of the Code. On the contrary, during the period from December 2009 to February 2011, the respondent submits that it merely maintained its decision to keep the applicant out of work, pending the receipt of medical information from the applicant that sufficiently addressed the respondent’s safety concerns. The respondent submits that maintaining or refusing to reverse an earlier decision cannot give rise to a separate breach of the Code: Longtin v. Great-West Life Assurance Company, 2011 HRTO 244, as cited in Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 41.

82The respondent submits that, if anything, the alleged disadvantage that the applicant experienced during the period from December 2009 to February 2011 (the period during which he was kept off work on the basis of the respondent’s alleged safety concerns) was a “continuing consequence” of the respondent’s decision to put the applicant off work in December 2009. The respondent submits that such “continuing consequences” are not “incidents” of discrimination/reprisal under the Code and cannot be relied upon to constitute a “series of incidents”: Garrie, above; Mafinezam v. University of Toronto, 2010 HRTO 1495 at para. 13-14.

83Having carefully considered the matter, I cannot agree with the respondent that there are no alleged incidents of discrimination during the period from December 2009 to February 2011 or that any disadvantage that the applicant experienced during this period could only be construed as a “continuing consequence” of the respondent’s December 2009 decision to put him off work on the basis of alleged safety concerns. On the contrary, in my view, holding the applicant out of work during the period from December 2009 to February 2011 is more properly regarded as an alleged continuing contravention of the applicant’s rights under the Code.

84In Visic, above, at para. 45, the Ontario Divisional Court adopted the Manitoba Court of Appeal’s reasoning as to what constitutes a “continuing contravention” in Manitoba v. Manitoba (Human Rights Commission) (1984), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 at para. 19 (C.A.). In that case, the Manitoba Court of Appeal stated:

What emerges from all of the decisions [various American arbitration decisions that the Court of Appeal and the lower court reviewed] is that a continuing violation (or a continuing grievance, discrimination, offence or cause of action) is one that arises from a succession (or repetition) of separate violations (or separate acts, omissions, discriminations, offences or actions) of the same character (or of the same kind). That reasoning, in my view, should apply to the notion of the “continuing contravention” under the Act. To be a continuing contravention, there must be a succession or repetition of separate acts of discrimination of the same character. There must be present acts of discrimination, which could be considered as separate contraventions of the Act, and not merely one act of discrimination, which may have continuing effects or consequences.

85In this case, the respondent argues that there was no continuing contravention of the applicant’s rights under the Code after the respondent put the applicant off work on or about December 9, 2009, because the respondent took no “fresh steps” after that date. However, there is a significant problem with this argument.

86Specifically, it does not account for the well-established principle that contraventions of the Code may arise not only as a result of actions, but also omissions. Indeed, in the Manitoba case, followed in Visic, the court expressly acknowledged that a “continuing contravention” could arise from a succession or repetition of omissions of the same character, provided that such omissions arguably violate the Code.

87One of the things that the applicant is alleging in this case is that the respondent’s continuing failure and/or refusal to return him to work throughout the period from December 9, 2009 to February 24, 2011 was a succession or repetition of omissions that infringed the applicant’s rights under the Code. In effect, the applicant alleges that every day the respondent failed and/or refused to return him to work during this period was a day on which the respondent contravened his rights under the Code. Put another way, the applicant contends that the respondent had an ongoing duty to accommodate his disability-related needs during this period by providing him with work within his restrictions; and that the respondent breached this duty by giving him no work during this period.

88Although of course there has been no determination at this point as to whether the respondent’s decision to send the applicant home and to keep him off work during the relevant period was discriminatory because of disability and/or reprisal, I agree with the applicant that the respondent’s ongoing failure and/or refusal to return the applicant to work from December 9, 2009 to February 24, 2011 is the sort of succession or repetition of omissions that, if proven, could constitute a continuing contravention of the Code.

89In coming to this conclusion, it is significant that the applicant continued to be an employee of the respondent during the relevant time period. In this way, this case is distinguishable from those such as Longtin, above, which have concluded that there is no continuing contravention of the Code following a termination of employment, just because the employee whose employment has been terminated may continue to suffer adverse consequences as a result of the termination. Whereas an employer may have no continuing employment obligations to an employee whose employment has come to an end, it is at least arguable that an employer has ongoing obligations, including obligations under the Code, to someone who continues to be its employee, whether or not actively at work.

90Alternatively, even if I were persuaded that an incident of discrimination could arise only as the result of actions, as opposed to omissions (which I am not), I would not conclude that there are no alleged incidents of discrimination during the period from December 2009 to February 2011. The applicant in this case does not allege that the respondent merely omitted to return him to work during the period from December 2009 to February 2011. On the contrary, in the context of an ongoing employment relationship, he alleges that the respondent repeatedly refused to return him to work, including on several occasions when the respondent was provided with medical reports and/or information from the WSIB and/or others that indicated that it was safe for the applicant to return to work with the respondent (in December 2009; January, March, April, May, June and October 2010; and January 2011). Even if the Tribunal did not accept that the ongoing failure to return the applicant to work after December 9, 2009 could constitute a continuing contravention of the Code, the applicant contends, and I agree, that the respondent’s alleged repeated refusals to return the applicant to work in the face of new medical reports and/or other information that he was fit to do so could be construed as fresh incidents of discrimination and/or reprisal. As there is much less than a one-year gap between each of the respondent’s alleged refusals to return the applicant to work, there is no basis upon which to conclude that the alleged incidents were insufficiently proximate in time to constitute a “series of incidents” within the meaning of the Code.

91Insofar as I have found that the respondent’s alleged failure and/or refusal to return the applicant to work during the period from December 9, 2009 to February 24, 2011, if proven to be discriminatory and/or a reprisal, could constitute a continuing contravention of the Code, the allegations from December 9, 2009 onwards are timely.

92However, this is not an end to the matter. The applicant alleges that the respondent infringed his rights under the Code by giving him little or no work to do upon his return to work in April 2009 until he was put off work in December 2009. Whether this alleged infringement of the Code dating back to April 2009 can be considered part of the “series of incidents” to which the Application relates depends on whether there is a sufficient nexus between it and a timely allegation of discrimination and/or reprisal under the Code. I now turn to that issue.

Whether alleged incidents are sufficiently related to form a “series of incidents”

93The respondent argues that the allegations from April 2009 to February 2011 are not sufficiently related to one another and/or to the only timely allegation of alleged discrimination/reprisal (i.e. the applicant’s August 2011 layoff) to be considered a “series of incidents” for the purposes of s. 34(1) of the Code.

94At the outset, I note that, contrary to the position taken by the respondent, the alleged incidents of discrimination/reprisal from April 2009 to February 2011 do not necessarily need to be related to the applicant’s August 2011 layoff in order to be timely. Rather, they need to be related to an alleged incident of discrimination that occurred within the one-year time period prior to the filing of the Application. In other words, in order for the alleged incidents of discrimination/reprisal from April 2009 to February 2011 to be timely, the applicant must establish that any or all of them were part of a “series of incidents” that culminated on or after January 11, 2011 (i.e. one year prior to the Application being filed on January 11, 2012).

95As the respondent points out, the Tribunal has held that in order for incidents to form part of a series, there must be some connection between the incidents that are alleged to form the series, such that they may be reasonably viewed as a pattern of conduct. (Baisa v. Skills for Change, 2010 HRTO 1621, at para. 22; Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Thambipillai v. Toronto District School Board, 2011 HRTO 487; Aberdeen v. University of Toronto, 2010 HRTO 2514; Farrell v. Barrie Police Services Board, 2011 HRTO 1442; Hattori v. University of Ottawa, 2011 HRTO 1747.) In other words, a “series of incidents” must be comprised of a number of thematically related or similar events occurring in temporal order or succession. (Lawrence v. Chrysler Canada, 2012 HRTO 1087 at para. 14.) A “series of incidents” cannot be comprised of incidents relating to discrete and separate issues. (Baisa, above.)

96In this case, the applicant argues, and I agree, that there is a sufficient nexus between the alleged infringements of the applicant’s rights under the Code from April 2009 to and including his layoff of August 2011, such that they are properly considered to be a “series of incidents” for the purposes of s. 34(1) of the Code.

97In my view, there is a sufficient nexus between the incidents of alleged discrimination from April 2009 to August 2011 insofar as they all relate to disadvantageous treatment that the applicant allegedly experienced because of his disability and/or his related claim for WSIB benefits and/or his related need for workplace accommodation. In addition, the incidents of April 2009 to August 2011 are sufficiently related to form a “series of incidents” insofar as they allegedly constitute a pattern of reprisals against the applicant for having filed a human rights Application against the respondent in 2009.

98Accordingly, I find that the incidents relating to the period from April 2009 to August 2011 are sufficiently related so as to form as “series of incidents” within the meaning of s. 34 of the Code that culminated in the one-year period prior to the filing of the Application. Accordingly, there was no delay in filing the Application.

99As I have found that there was no delay in filing the Application, there is no need to consider whether the delay was incurred in good faith and would result in substantial prejudice to anyone affected by the delay.

100The respondent’s request to dismiss, on the basis of delay, the allegations that I have otherwise found to be within the scope of the Application is dismissed accordingly.