HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Veronique Susan Nyonzima Applicant
-and-
Idlewyld Manor Respondent
INTERIM DECISION
Adjudicator: Naomi Overend Date: March 27, 2013 Citation: 2013 HRTO 513 Indexed as: Nyonzima v. Idlewyld Manor
WRITTEN SUBMISSIONS
Veronique Nyonzima, Applicant Francois Sauvageau, Counsel
Idlewyld Manor, Respondent Jane M. Gooding, Counsel
Introduction
1This Interim Decision addresses the applicant’s Request for an Order During Proceedings (“Request”) to amend her Application and the respondent’s Request for production of documents from the applicant’s other employer.
Decision and analysis
Amendment of the Application
2The applicant filed her Application on July 25, 2011 alleging discrimination in employment on the basis of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). At the summary hearing, counsel for the applicant submitted that I could not rely on the current Application as it was poorly drafted and contained incomplete allegations.
3I would note that the applicant had not, as of the date of the summary hearing, filed a Request to amend and so I did not have a full set of allegations before me on which I could make any determination. I advised in my Interim Decision, 2012 HRTO 2409, that in the event that the applicant filed a Request on or before January 15, 2013, the Tribunal would determine whether it would allow these amendments.
4As it stands now, the Application, , alleges that the applicant was subject to reprisal during the period from June 24, 2011 to July 15, 2011, for having filed, and participated in proceedings concerning, two Applications to this Tribunal in 2009. The allegations can be summarized as follows:
The applicant asked to be removed from the schedule on July 5 and 6, 2011 in order to attend a hearing of two earlier Applications on July 5, 2011. She was required to produce proof that the hearing was scheduled on July 5, 2011, which was harassment. Moreover, she was not removed from the schedule on July 6, 2011, despite having requested it off. When she did not attend work on that date, the respondent left her a voice-mail message asking where she was.
On July 8, 2011, when she returned to work, the applicant was followed around by a co-worker who monitored her actions and then told her that the respondent was powerful and looking for ways to terminate the applicant’s employment.
Other co-workers refused to work with the applicant, which put the applicant under a great deal of stress.
On July 14, 2011, the respondent falsely accused the applicant of abusing a resident on July 13, 2011. She was then suspended and escorted out of the building when she tried to speak to a couple of co-workers.
On July 15, 2011, the applicant commenced a four-week stress leave as a result of the “continuous retaliation and abrupt suspension and harassment.”
5The applicant now alleges that, subsequent to the filing of her Application, she was harassed by the respondent with unreasonable demands for meetings during her medical leave. On September 2, 2011, her employment was terminated by the respondent. The applicant now seeks to add the following allegations:
Due to the poisoned atmosphere at work, the applicant became depressed. Her doctor prescribed her anti-depressor [sic] and put her off work for four weeks on July 15, 2011. The applicant provided the doctor note to the Respondent
On July 28, 2011, after receiving the medical note from the applicant, the respondent requested that she attend to a meeting on August 2, 2011.
On July 29, 2011, following the receipt of a letter from the applicant advising she was too ill to attend to the meeting, the respondent sent another note to the applicant advising that they were expecting her to attend to the meeting. The respondent also required a written confirmation from her doctor that she was unable to attend to the meeting.
On August 4, 2011, the applicant’s doctor judged that the applicant was unable to return to work and expected the applicant to be in position to return to work, without restrictions by August 15, 2011.
On September 2, 2011, the applicant was terminated.
The applicant states that she was dismissed because of her disability and because the respondent was angry that she filed a complaint to the Human Rights Tribunal and wanted to punish her.
6The Application only cites the ground of reprisal, but the applicant seeks to add the grounds of race, colour and disability. There is nothing in the revised or original Application that alleges discrimination on the basis of race or colour. The applicant did mention, for the first time, at the summary hearing that was held on December 17, 2012, that a co-worker advised her that the respondent did not like working with blacks, that “black employees were not welcome.” (See my Interim Decision, 2012 HRTO 2409.) The applicant did not, however, seek to add this allegation in her Request to amend.
7The Request to amend was filed on January 15, 2013. The respondent objects to the late filing of the Request, nearly 18 months after the Application was filed, and 16 months after the last alleged incident of discrimination. It asserts that the amendments are untimely and that it will “suffer significant prejudice” if the amendments are granted.
8The respondent points out in its submissions that the applicant was well aware of the facts at the time her then paralegal filed her Reply on February 16, 2012, and at the very latest this is when the applicant should have sought to amend her Application. Instead, while the Reply states that the instant Application “points to fresh acts of human rights violations of serious nature occurring from June 24, 2011 to July 14, 2011,” there is no request to add the events occurring after July 14, 2011.
9However, paragraphs 67-77 of the Response filed by the on December 9, 2011 detail, from the respondent’s perspective, the events subsequent to July 14, 2011 up to and including the termination of the applicant’s employment. The applicant does not object to the inclusion of this additional chronology in her Reply. Indeed, at paragraphs 19 and 20 of her Reply she provides a limited rebuttal to the allegations.
10Thus, while the applicant made no effort to amend her Application, it would appear that from the time the Response was filed, the subsequent events became part of the factual background of this Application. In these unusual circumstances, it is difficult to see how the respondent can assert significant prejudice.
11With respect to the additional grounds, the applicant has not alleged anything in her amended Application that would relate to the grounds of colour and race, although the additional allegations do appear to relate to disability. However, it is not clear to me whether the failure to allege the comment by the co-worker was an oversight or deliberate omission. Rather than require the applicant to file a further request to amend, I will leave it to her to communicate with the respondent and Tribunal concerning the basis for her assertion that her race and/or colour were a factor in the respondent’s treatment of her.
12Accordingly, I will allow the amendments as requested.
Production Request
13The respondent seeks the applicant’s employment records for July and August 2011 from the applicant’s other employer, Hampton Terrace Care Centre (“Hampton”), a third party to this proceeding. To that end, it wrote to the applicant’s counsel asking for the applicant to provide a signed Consent to the release of this information. The respondent advises that its counsel did not receive a response to either the January 4 or 16, 2013 letters.
14The Request for production is directed to Hampton. However, the Form 23 submitted with the Request shows that it was delivered only to the applicant’s counsel and not Hampton. The Tribunal will deal with this Request once it is in receipt of a Form 23 indicating that Hampton has received notice of the Request and has had an opportunity to respond.
order
15In sum, I am making the following orders/directions:
a. The applicant’s Request to amend her Application is granted to include the allegations set out in paragraph 5 of this Interim Decision and the grounds of race, colour and disability;
b. The respondent is directed to deliver to the third party employer a copy of its Request for production and file the requisite Form 23 with the Tribunal; and
c. The Tribunal will address the Request for production once the third party employer has been given the fourteen-day period to respond.
Dated at Toronto, this 27th day of March, 2013.
”signed by”
Naomi Overend Vice-chair