HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Bellhouse
Applicant
-and-
Toyota Motor Manufacturing Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel Date: March 12, 2013 Citation: 2013 HRTO 414 Indexed as: Bellhouse v. Toyota Motor Manufacturing Canada Inc.
WRITTEN SUBMISSIONS
Lisa Danielle Bellhouse, Applicant Self-represented
Toyota Motor Manufacturing Canada Inc., Respondent William Lemay, Counsel
Introduction
1This Interim Decision addresses the applicant’s two Requests for Orders During Proceedings (“Requests”).
2The applicant filed an Application dated November 17, 2011 alleging that the respondent discriminated against her because of disability when it failed to provide reasonable accommodations for her workplace injury. In her Application she provides a narrative covering the time period between the date of her wrist injury in January 2009 to the date she was placed on Workplace Safety and Insurance Board (“WSIB”) benefits in or around June 2011. A Notice of Hearing has not yet been issued to schedule a hearing in this matter.
January 13, 2012 Request
Applicant’s Request
3On January 13, 2012, the applicant filed a Request to amend her Application and to obtain certain particulars from the respondent. The applicant sought to amend her Application to include three additional allegations. These allegations can be summarized as follows:
In June 2009, the applicant’s doctor placed her wrist in a cast. When she went to work, the respondent told her she could not be on its property due to safety concerns. When she asked about modified work, she was told to go home. She ended up collecting WSIB benefits for the three week period that she was in the cast. The applicant alleges that other members of her work team have been allowed to come to work with a cast and have been accommodated with modified duties until the cast came off. In her Request, the applicant refers to two of her co-workers in particular as examples of employees who were given modified duties when they were forced to wear a cast due to an injury.
In December 2011, the applicant e-mailed one of the respondent’s human resources specialists with certain questions about her holiday pay, the treatment of employees on WSIB benefits, and whether two job postings had been filled. The human resources specialist told her that she could not answer the applicant’s questions at the time because she was “taking these questions through other resources”. The applicant states that she e-mailed certain management representatives about the issue and received no response. She claims that the incident is a reprisal for filing her Application.
Shortly before filing her Request, the applicant became aware that one of her co-workers was given modified duties until a permanent placement could be found for her. She states that this co-worker was in a trial job placement. When the placement was found to be unsuitable, she was returned to her modified work duties. The applicant claims that, unlike her co-worker, when her job placement was found to be unsuitable, she was sent home and placed on WSIB benefits.
4In addition, to seeking to amend her Application, in her January 13, 2012 Request, she sought the following information or particulars from the respondent:
a) how many members of her work team are currently on modified duties;
b) how long have these team members been on modified duties; and
c) how many team members have been placed on modified duties since June 2011.
5The applicant claims in her Request to amend that the respondent told her in June 2011 that there were no modified duties available. She claims that, since that time, many team members have been accommodated on modified duties. She seeks the information set out above to assist in showing that the respondent could have provided her with modified duties but failed to do so.
Respondent’s Response
6The respondent submits that the applicant’s Request should be denied because the allegations she wishes to make and the particulars she is seeking are untimely and irrelevant. The respondent claims the proposed amendment is untimely as it relates to alleged events that occurred more than one year before the Application was filed. The respondent denies that it has engaged in any reprisal. It also submits that the allegations relating to the treatment of other employees are irrelevant as these employees have been accommodated in accordance with their specific medical restrictions. The respondent argues that to permit the amendment would unduly lengthen and complicate the proceedings as the respondent would have to explain the particular medical restrictions of each individual referenced by the applicant and its accommodation process for each of them. The respondent also claims it is not at liberty to discuss the confidential medical information of other employees.
7The respondent requests that, if the Tribunal allows the applicant’s amendment Request that the Tribunal issue an order as follows:
a) permitting the respondent to disclose and rely upon the confidential medical information of each employee listed in the Request to the extent necessary to respond to the Request;
b) compelling the applicant to provide notice to each affected individual by the order and the fact that their confidential medical information will be released to the applicant and the Tribunal;
c) ordering the parties to maintain the strict confidentiality of the affected individuals’ medical information; and
d) permitting the respondent to file an amended Response within 30 days of the receipt of the relevant medical information.
Decision
Request to Amend
8In 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, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
9In the circumstances, I exercise my discretion to grant the applicant’s Request to amend her Application. The information and allegations contained in subparagraphs a and c of paragraph 3 above relate to the applicant’s allegation that the respondent failed to fulfill its duty to accommodate her disability. The timing of the events described fits within the timeframe of the narrative provided in her Application regarding the respondent’s alleged pattern of conduct in relation to the accommodation of her disability. I also find that the information and reprisal allegation contained in subparagraph b of paragraph 3 flows from the continuum of facts in the original Application. The arguments raised by the respondent as to why the alleged facts in this subparagraph do not amount to a reprisal are more appropriately raised in an amended Response than as a reason to deny the applicant’s Request to amend.
10I find that the timing of the Applicant’s Request also favours granting the amendment. The Applicant made her Request shortly before filing her Reply which was early in these proceedings. The proceedings are still not at an advanced stage, as no hearing date has been set and no disclosure has been made. As well, in my view, granting the amendments should not unduly lengthen the proceedings as claimed by the respondent.
11As for the respondent’s delay argument in regards to the proposed amendments, as noted by the Tribunal in Shakhnazarov v. George Brown College, 2011 HRTO 1917, s.34(1) of the Code applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments. However, the Tribunal in Shakhnazarov did accept that s. 34 sets out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. In Shakhnazarov and Ricottone v. First Real Properties Limited, 2012 HRTO 1823, the Tribunal refused to grant proposed amendments that would add new issues or allegations that were unrelated to the allegations set out in the application. By contrast, as noted above, the incident from June 2009 that the respondent claims to be untimely fits within the timeframe of the narrative provided in the Application which the respondent has not challenged as being untimely. In my view, the incident also relates to the respondent’s alleged pattern of conduct relating to the accommodation of the applicant’s disability. I find that it forms part of a series of incidents, the last of which occurred within one year of the Application. Therefore, there is no reason to deny the Request to amend on the basis of delay or lack of timeliness.
12Having granted the Applicant’s Request to amend, I also grant the respondent’s request that it be permitted to file an amended Response. The applicant shall also be permitted to file an amended Reply. I find that the respondent’s requests set out in subparagraphs a-c in paragraph 7 are premature. If at a later date the respondent believes it is necessary to disclose, or seek disclosure, of the confidential health information of certain employees in order to support the claims made in its Response, it may file a formal Request with the Tribunal. However, it should be prepared to address the questions specified at the end of this Interim Decision.
Request for Particulars
13I find that the applicant’s Request for particulars is premature. Rule 16 of the Tribunal’s Rules of Procedure provides for disclosure of arguably relevant documents, which are not privileged, after the Tribunal sends a Confirmation of Hearing. No such Confirmation of Hearing has been sent. The Tribunal will not normally consider a request for disclosure or production of documents before that date has passed. The applicant may renew her Request following the deadline for disclosure under the Tribunal’s Rules if she believes that the respondent has not disclosed the information sought in her Request. The Tribunal will consider whether or not to grant her Request at that time.
April 10, 2012 REquest
14The Applicant filed a Request dated April 10, 2012 in which she seeks particulars and documents relating to the respondent’s announcement in March 2012 that it would be expanding its operations and creating 400 new jobs. Specifically, the applicant requests a list of the 400 new jobs that are being created, a list of job opportunities for team member movement, and any current internal job postings in all departments.
15The respondent objects to the Request. It claims that a list of the expected 400 new jobs does not exist as the respondent will be implementing its planned expansion in 2013. The respondent states that it has not yet created job postings for the new jobs and does not yet know exactly what new jobs will be created.
16The applicant’s Request is premature for the reasons set out in paragraph 12 above. As noted in that paragraph, the applicant may renew her Request following the deadline for disclosure under the Tribunal’s Rules if she believes that the respondent has not disclosed the information sought in her Request. The Tribunal will consider whether or not to grant her Request at that time.
ORDER
17The Tribunal orders the following:
a) The applicant’s January 13, 2012 Request for particulars and her April 10, 2012 Request for particulars and documents are denied as premature.
b) The Application is amended, as requested by the applicant.
c) The respondent is permitted to file an amended Response. It shall file its amended Response with the Tribunal, delivered to the applicant, within 35 days of the date of this Interim Decision.
d) The respondent’s requests relating to the disclosure of the confidential medical information of each employee listed in the applicant’s Request are denied. If, at a later date, the respondent believes it is necessary to disclose, or seek disclosure, of the confidential health information of these employees in order to support the claims made in its amended Response, it may file a formal Request with the Tribunal at that time. However, it should be prepared to fully address the following:
the specific employees whose confidential medical information is sought to be disclosed;
the time frame for the confidential medical information sought to be disclosed;
why the disclosure is necessary in order for the respondent to support the claims made in its amended Response; and
whether this confidential medical information is already in the respondent’s possession or whether the respondent is seeking disclosure from another entity such as its health center as was the case in Wales v. Toyota Motor Manufacturing Canada, 2012 HRTO 2104.
e) The applicant is permitted to file an amended Reply with the Tribunal, delivered to the respondent, within 14 days of receipt of the amended Response.
Dated at Toronto, this 12th day of March, 2013.
”singed by”
Jo-Anne Pickel Vice-chair