Marcello Bottiglia v. Ottawa Catholic School Board, 2013 HRTO 817

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marcello Bottiglia

Applicant

-and-

Ottawa Catholic School Board

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: May 15, 2013

Citation: 2013 HRTO 817

Indexed as: Bottiglia v. Ottawa Catholic School Board

WRITTEN SUBMISSIONS

Marcello Bottiglia, Applicant

J.P. Zubec, Counsel

Ottawa Catholic School Board, Respondent

R. Paul Marshall, Counsel

Introduction

1This is an Application filed on November 22, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2On April 19, 2013, the applicant filed a Request for Order During Proceedings (RFOP), seeking an order permitting him to amend his Application.

3The respondent does not object to the applicant’s Request, but seeks the opportunity to provide an amended Response, should the Tribunal grant the Request.

Request to Amend the Application

4In his Application, the applicant alleges that the respondent employer discriminated against him on the basis of disability, as it failed to accommodate him in a return to work according to medical documentation. He also alleges that he is able to return to work, but remains on an unpaid leave. In his Application, he also referenced having applied for his pension entitlements in an effort to mitigate his damages, but indicated that the matter of those entitlements was “not yet resolved” as his Pension Plan notified him that it was encountering “difficulties…in obtaining confirmation from the Board regarding [his]…decision to claim his pension benefits”.

5In his RFOP, the applicant alleges that though the respondent employer was aware of the fact he was on unpaid leave as of October 17, 2012, and even though it took the position that there was no reliable evidence that he was able to return to work, it failed to notify him of “sick and disability entitlements”. He also alleges that it refused to respond to his request for his “sick and disability benefits”. Finally, he alleges that it prevented him from accessing his pension entitlements while he was waiting to be returned to work. The applicant requests that he be permitted to amend his Application to include these allegations as instances of reprisal, contrary to the Code.

6Further, in his RFOP, the applicant seeks to amend his Application so as to include further remedies, including financial compensation for the loss of “sick and disability leave benefits” or damages for the loss of pension benefits, a further $30,000.00 by way of “general damages” relating to the alleged reprisals, a declaration that the respondent employer has violated the Code by committing reprisals, and other such relief as the Tribunal may permit.

7Rule 1.7 (c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

8In determining requests to amend Applications under s. 34 of the Code, 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.

9I am persuaded that the nature of the allegations the applicant seeks to add flows directly from the allegations of discrimination in his Application and is closely connected to them in time and in substance. Further, the request to add these allegations is timely, being made within one year of the alleged event. The respondent does not object to the proposed amendments, provided it is permitted to file further Response with regard to this allegation. In view of the above, the applicant’s request to amend his Application by adding the above-noted allegations and requests for remedy, is allowed.

10The Tribunal makes the following orders:

(i) The applicant’s request to amend his Application so as to include the allegations that the respondent employer failed to notify him of his “sick and disability” entitlements and that the respondent employer refused to respond to his request for “sick and disability” entitlements and that the employer prevented him from accessing his pension entitlements, is allowed.

(ii) The applicant’s request that he be permitted to add the above-noted remedies to the remedies he seeks in his Application, is granted.

(iii) Should the respondent wish to provide a Response to the additional allegations and or the remedies sought, it must file such Response with the Tribunal and deliver it to the other party within 14 (fourteen) days of this Interim Decision.

11I am not seized.