Amanda Fernando v. M.G.R. Contracting and Maintenance Ltd. and Graziano Roti, 2013 HRTO 836

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Fernando

Applicant

-and-

M.G.R. Contracting and Maintenance Ltd. and Graziano Roti

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 16, 2013

Citation: 2013 HRTO 836

Indexed as: Fernando v. M.G.R. Contracting and Maintenance Ltd.

WRITTEN SUBMISSIONS

Amanda Fernando, Applicant

Wade Poziomka, Counsel

M.G.R. Contracting and Maintenance Ltd., Respondent(s)

Michael MacLellan, Counsel

Introduction

1This Interim Decision addresses a number of requests for order brought by the parties in this Application, which was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of pregnancy and disability.

2By way of chronology, the respondents brought a Request for Summary Hearing (Form 26) and a Request for an Order During Proceedings (Form 10) on March 21, 2013, shortly after they filed their Response. The Form 10 asks the Tribunal to do the following:

1. Dismiss on the basis of no prima facie case;
2. Dismiss the Application as an abuse of process;
3. Defer the Application to a proceeding under the Employment Standards Act for unpaid commissions;
4. Remove the individual respondent;
5. Dismiss some allegations on the basis of delay; and
6. Order production of an email referred to in the Application.

3On April 15, 2013, the respondents brought an additional Form 10, asking to strike all, or portions, of the Reply for a multitude of reasons. This Form 10 also makes a further request for production of documents.

4The applicant filed a Form 11 to the second of the respondent’s two Form 10s. In that Form 11, the applicant’s counsel advises that he did not receive the first Form 10 or the Request for Summary Hearing, which were both sent on the same date. Although the respondents filed a Statement of Delivery (Form 23) indicating that both Requests were delivered to the applicant’s counsel by email, I have no reason to question counsel’s assertion that these were not received.

5I would note, however, that many of these requests found in the first Form 10 were raised in the Response to the Application (Form 2), which the applicant did receive and responded to in her Reply (Form 3) dated April 2, 2013. I am able to deal with the requests on the basis of the information before me.

Analysis and decision

Summary Hearing

6The respondents brought a Request for Summary Hearing asking to dismiss this matter on the basis of no reasonable prospect of success. This Request is denied. In accordance with Rule 19A.6 of the Tribunal’s Rules of Procedure, it is not necessary to provide reasons.

No Prima Facie Case/Abuse of Process

7The respondents also ask the Tribunal to dismiss the Application on the basis that it discloses no prima facie case of discrimination and constitutes an abuse of the Tribunal’s process.

8With respect to the assertion of abuse of process, the respondents state that the Application is “wrought with inaccuracies” which are “deliberately misleading.” The Tribunal is in no position to judge whether this statement is true until it hears evidence with respect to the allegations. In any event, the Tribunal could not dismiss an application within its jurisdiction without affording the parties the opportunity to make oral submissions. It would be neither just nor expeditious to engage in such a process in advance of the hearing on the merits. Accordingly, this request to dismiss is dismissed.

9I disagree with the respondents that the Application discloses no prima facie case of discrimination. She alleges in her Application that shortly after she advised the individual respondent she was pregnant, she started to experience adverse treatment.

10The respondents also state that the applicant has failed to disclose any alleged disability, but, in fact, the Application makes reference to the applicant taking a two-month stress leave from work. The condition that allegedly led to the applicant taking that leave (and seeking treatment) could be a disability as that term is defined in the Code.

11Although, I agree that the applicant has failed to specify the differential treatment associated with this ground, she does state that the respondents failed to pay her commissions owed while she was off on her leave. An issue for the adjudicator hearing this matter will be whether the respondents’ alleged failure to pay the commissions owing were related to the applicant’s stress leave and/or the pregnancy. It would be premature for me to strike the ground of disability at this stage of the proceedings and the respondents’ request is denied.

Delay

12Section 34 states, in part:

(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.

13The applicant filed her Application on January 24, 2013. Her Application deals with a series of allegations commencing in December 2011 and ending in May 2012, as well as the alleged failure to pay commissions, discussed above, which she learned about in January 2013. The respondents state that the Tribunal should not deal with any allegations arising in December 2011 as they are out of time. However, on the face of the Application, the December 2011 allegations appear to be part of a series of incidents, which end in May 2012, well within the one-year time limitation. It is not appropriate to dismiss these allegations at this juncture.

Removal of Individual Respondent

14Rule 1.7 gives the Tribunal the authority to remove or add a party. The Tribunal decision in Persaud v. Toronto District School Board 2008 HRTO 31 has set out a number of criteria for consideration in determining whether to remove a party. The relevant criterion in this case are as follows:

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

15On the face of the allegations, the individual conduct of Graziano Roti, the individually-named respondent, appears to be central issue. The applicant submits that his conduct fell outside the scope of an employee of the corporate respondent. Accordingly, it is not appropriate to remove him as a respondent at this juncture and the respondents’ request is dismissed.

Production of Documents

16The respondents have requested copies of emails upon which the applicant relies, “any and all documents on which the Applicant intends to relay at the hearing” and the “actual email” from which the applicant copies the text in her Reply.

17Rule 16 of the Tribunal’s current Rules of Procedure set out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case. The Tribunal has exercised its discretion to allow for early production of documents in exceptional circumstances, such as where a respondent is unable to file a Response. The respondents have not identified any exceptional circumstances in this case.

18The respondents’ request for production at this stage is denied as premature.

Deferral

19The respondents ask that the Tribunal defer this Application, pending the investigation by the Ministry of Labour into unpaid commissions. The respondents do not argue that the Ministry’s findings with respect to this issue would be determinative of the human rights issues raised in this Application. The applicant acknowledges that if this investigation results in an award of compensation, she will be obliged to notify the Tribunal so as to not recover damages for the same loss twice.

20In the absence of any further information or argument, the Tribunal declines to grant the respondents’ request to defer. Provisions can be made to ensure that the applicant does not receive double recovery in the event that she is found to be entitled to compensation by this Tribunal.

Striking Portions of Reply

21To a large extent, the provisions in the Reply to which the respondents object are merely responsive to issues raised in the Response. To the extent that the Application provides clarification of her allegations, this is not, in itself, a basis for striking a Reply. It is not necessary or particularly helpful at this stage to go through the minutiae of the allegations and objections to determine if certain phrases or paragraphs should be removed as irrelevant. The respondents’ request to strike is denied.

Amendment of Application

22The applicant asks to amend her Application to include the ground of reprisal. She does this by way of a Response to a Request for an Order (Form 11), rather than bringing a Request for an Order (Form 10) to which the respondents might file a Response. Unless the respondents indicate they are prepared to consent to the request, the applicant must file a Form 10 if she wishes to pursue this amendment.

order

23In sum, I have made the following orders/direction:

a. The respondents’ request for a summary hearing is denied;

b. The respondents’ request to dismiss on the basis of no prima facie case of discrimination is denied;

c. The respondents’ request to dismiss on the basis that the Application is an abuse of this Tribunal’s process is denied;

d. The respondents’ request to dismiss portions of this Application for delay is denied;

e. The respondents’ request to remove Graziano Roti as an individual respondent is denied;

f. The respondents’ requests for production of documents are denied as premature;

g. The respondents’ request to defer is denied;

h. The respondents’ request to strike the Reply, or portions thereof, is denied; and

i. The Tribunal will not deal with the applicant’s request to amend her Application to include the ground of reprisal until such time as it is brought in the proper format or consented to by the respondents.

24I am not seized of this matter.