Larivière v. Ontario (Community Safety and Correctional Services), 2013 HRTO 680

B E T W E E N:

Marlene Larivière Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Denise Scrivano Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: April 23, 2013 Citation: 2013 HRTO 680 Indexed as: Larivière v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Marlene Larivière, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Denise Scrivano, Respondents Donna Petri, Counsel

1This is an Application filed on November 22, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and sex.

2A mediation was held with the parties, but it did not result in a settlement. The Application is in queue to be scheduled for hearing.

3Following the mediation, the applicant filed a Request for Order During Proceedings (“RFOP”) in which she marked off the box “request to consolidate or have applications heard together”. She attached to the RFOP several pages of narrative in relation to an Acting Operational Management assignment she received, what appear to be allegations in relation to the shifts to which she and her husband were scheduled, and emails that she sent to senior management and an email that the Deputy Superintendent Administration sent to her husband.

4The respondents filed a Response to a RFOP in which they note that as the applicant has not filed a new application, there is no new matter to consolidate. Further, the respondents submit the additional information submitted by the applicant does not clearly articulate the nature of any new allegations the applicant may be intending to raise, making it difficult for the respondents to determine how to respond to the RFOP. They request that the applicant’s RFOP be denied.

5The Tribunal issued a Case Assessment Direction (“CAD”) in which the Tribunal noted that it appeared that the applicant was attempting to amend her Application rather than requesting to consolidate or have applications heard together as she filed only one Application. The Tribunal directed the applicant to advise whether she was seeking to amend her Application by relying upon the information attached to her RFOP as new allegations. The Tribunal also directed the applicant to advise whether she was alleging that the new information pertaining to her husband and the shifts for which they were scheduled, is a violation of the Code on the basis of disability and/or sex, and /or another Code ground and to identify that other Code ground.

6The applicant responded to the directions in the CAD. She advises that she would like to amend her Application by relying upon the information attached to her RFOP as new allegations. She is also seeking to amend her Application to include the Code ground of marital status.

analysis

7In Wozenilek v. 7-Eleven Canada, 2010 HRTO 407, the Tribunal stated at para. 26 that it would consider the following factors in deciding whether or not to amend a pleading: (a) whether the amendment would occasion actual prejudice to the other party; (b) fairness; (c) the conduct of the party seeking the amendment; and (d) the impact of the proposed amendment on the course of the hearing and any other parties.

8In this case, although the respondent opposes the applicant’s RFOP, the Tribunal permits the applicant to amend her Application to include the allegations contained in the RFOP as well as to add the Code ground of marital status. The hearing is not yet scheduled, the allegations are not untimely, and there is sufficient detail in the RFOP to which the respondents can respond. Of course, these amendments are granted without any determination by the Tribunal as to the merits of the allegations and without prejudice to any position the respondents may wish to take regarding these issues. See Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 at para. 5.

ORDER

9In conclusion, I order the following:

The Application be amended with respect to the additional allegations contained in the attachments to the applicant’s RFOP and the additional Code ground of marital status;
The respondents may file with the Tribunal, and copied to the applicant, an amended Response within 35 days of the date of this Interim Decision with respect to these amendments; and
The applicant may file with the Tribunal, and copied to the respondents, a Reply responding only to the respondent’s amended Response within 14 days of receipt of the amended Response.