HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Irene Pereira
Applicant
-and-
Humber River Regional Hospital and
Ontario Nurses’ Association
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Pereira v. Humber River Regional Hospital
WRITTEN SUBMISSIONS
Irene Pereira, Applicant
Patrick James, Counsel
Humber River Regional Hospital, Respondent(s)
Carolyn Cornford Greaves, Counsel
1This is an Application filed 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 and with respect to membership in a vocational association because of race, place of origin and ethnic origin.
2The Tribunal held a summary hearing in this matter on April 23, 2012. In Interim Decision 2012 HRTO 1680, the Tribunal dismissed all but one of the applicant's allegations because they had no reasonable prospect of success. The surviving allegation was that three of the applicant's shifts were cancelled in April of 2011 for discriminatory reasons (“the April 2011 shift cancellation allegation”). The Tribunal found that the applicant had pointed to evidence that she has or is reasonably available to her that, if accepted, could arguably support a finding that the cancellation of the applicant shifts in April 2011 amounted to discrimination contrary to the Code. The Tribunal found, however, that this evidence completely recast the nature of the allegations as follows, at paragraphs 37 and 38:
At the summary hearing, the applicant pointed to evidence that she has or is reasonably available to her that arguably could support a finding, assuming the evidence is accepted, that the cancellation of her shifts amounts to racial or ethnic discrimination for which the Hospital is vicariously responsible. This evidence and theory, however, is a significantly different description of the cancellation of these shifts than is contained in the Application. In the Application, the statement that the applicant’s shifts on April 9, 10 and 17, 2011 were cancelled is contained under the heading “Reprisals by Vocational Association, the Ontario Nurses Association, and by the Hospital” where the applicant sets out her allegations that the respondents committed reprisals against her. Specifically, the Application sets out that the three shifts were cancelled after she informed Mr. Howell on April 9, 2011 that she did not appreciate his comments during their previous meeting and wished to proceed with a grievance, which form part of her reprisal allegations against the Union. The allegation is not set out under the “Examples” heading of the Application where the applicant described the alleged incidents of discrimination and harassment she experienced in the workplace.
The applicant therefore seeks to pursue this allegation based on entirely different facts, a different legal characterization and against a different respondent. Consequently, the allegation is in substance an entirely different allegation than that set out in the Application and is in effect a new allegation. In my view, this amounts to a significant amendment to the Application for which the applicant has made no request.
3The Tribunal concluded that this amounted to a significant amendment to the Application, which the applicant did not request. Accordingly, the Tribunal directed the parties to make written submissions addressing whether the Tribunal should permit the applicant amend the allegations and the delay in making the allegations is currently characterized.
4The parties filed their submissions within time period set by the Tribunal and I drafted this decision in November 2012. Unfortunately, the decision was not processed for publication until an inquiry caused the Tribunal to investigate. The Tribunal apologizes for this error and for the delay and inconvenience that is has caused.
Submissions
The Applicant
5The applicant submitted that she did not set out explicit theory regarding why the shifts were cancelled in April 2011. Rather, she identified the incidents chronologically but it happened that the shift cancellation immediately preceded interactions with union officials that led to retaliation from the union. The applicant submitted that notwithstanding the April 2011 shift cancellation allegations are set out in the Application under the heading related to reprisals by the respondents, they form part of the discrimination she suffered in the workplace. The applicant submitted that the headings in the Application were included for convenience and do not limit the legal significance or characterization of her allegations regarding the cancellation of her shifts in April 2011.
6The applicant submitted that there had been no delay in making the April shift cancellations allegation because she pleaded the essential facts of the shift cancellation in the Application. The applicant’s submissions during the summary hearing did not seek to amend the allegation. Rather, the applicant sought to advance the theory of her case that coworkers cancelled her shifts because they disliked her on account of her racial and ethnic background. The applicant submitted that the theory of a case may evolve over time and, provided the material facts have been pleaded, an applicant may advance additional theories related to the facts that were pleaded within the time limitation. The applicant relied upon Denton v. Jones et al., (No.2) (1977), 1976 CanLII 831 (ON HCJ), 14 O.R. (2d) 382 (H.C) where the Court allowed the plaintiff to amend the statement of claim to allege trespass to the person as well as negligence, based on the same facts. The applicant submitted that the respondent will suffer no prejudice if the applicant is permitted to proceed with the characterization of the April 2011 shift cancellations allegation as enunciated during the summary hearing.
7The applicant submitted that it was the respondent’s employees who cancelled the applicant shifts in April 2011. Consequently, the respondent is the person responsible for their behaviour, which the applicant pleaded in the Application. The applicant noted that the respondent had in fact responded to the shift cancellation allegations in its Response. The applicant submitted that the Application set out all the facts necessary to support a theory of vicarious liability against the Hospital, as defined in Weingeri v. Seo, 2005 CanLII 21356 (Ont. C.A.)
The Respondent
8The respondent made lengthy submissions explaining why the April 2011 shift cancellation allegations have no merit and have no reasonable prospect of success. The respondent also described in detail the steps it took to investigate the allegations upon receiving Interim decision 2012 HRTO 1680. It is not necessarily to record these submissions for the purposes of this Interim Decision.
9The respondent submitted that the first time the applicant attributed the cancellation of her shifts April 2011 to the respondent was at the summary hearing on April 23, 2012. Similarly, the respondent submitted that the first time the applicant alleged that the shifts were cancelled because of discrimination based on race or ethnic origin was at the summary hearing. The respondent submitted that the applicant raised these allegations more than one year after the shift cancellations took place, outside of the one-year time limit set out in section 34 of the Code.
10The respondent submitted that the Tribunal may only extend the time for raising a violation of the Code if the applicant provides a good faith explanation for the delay. The respondent submitted that the applicant was represented by experienced counsel and was aware of the allegedly improper shift cancellations within the one year limit, but nonetheless chose to pursue these allegations against the union only. Accordingly, the respondent submitted that the applicant did not act with all due diligence in pursuing the new allegations against the Hospital at the summary hearing and has not established that her delay was incurred in good faith. The respondent submitted that, in these circumstances, the Tribunal should find the applicant's new allegations to be untimely and that there is no basis for the Tribunal exercise its discretion under section 34 (2) of the Code.
Analysis and Decision
April 2011 Shift Cancellations
11In Interim Decision 2012 HRTO 1680, the Tribunal declined to dismiss the April 2011 shift cancellation allegation because it could not conclude that it had no reasonable prospect of success. As noted above, the Tribunal found the applicant pointed to evidence that, if accepted, could support a finding of racial or ethnic discrimination for which the hospital is vicariously liable. The Tribunal's concern regarding this allegation was that it appeared that the applicant had recast the factual and legal characterization of it to the point where it was effectively a new and possibly untimely allegation. The Tribunal therefore directed the parties to provide submissions regarding whether the Tribunal should permit this apparent amendment. This was not an opportunity to reargue the issue of whether the allegation has a reasonable prospect of success or to address the merits of the allegation as both parties have purported to do to some degree. I remain of the view that the characterization the applicant placed on the April 2011 shift change allegations amounts to an amendment of the Application. As noted, the allegation was set out in this section of the Application dedicated to the applicant’s reprisal allegations against her union and the respondent. A heading defines the subject matter to be conveyed under it and I have difficulty with the applicant’s submission that the headings employed in the Application are meaningless and were added merely for convenience. The allegation is situated in the midst of allegations of negative treatment by the union. Unlike other allegations regarding work assignments set out under the heading of "Examples", the cancellation of applicant's shifts in April 2011 are not attributed to anyone. Further, the witness statements the applicant provided before the summary hearing indicate that she was unaware of the particulars indicating that the shift cancellations may amount to discrimination or harassment and not a reprisal only a few weeks prior to the summary hearing. The applicant clearly did not plead all the necessary material facts regarding the April 2011 shift cancellation allegation, as she was required to provide further facts at the summary hearing to avoid a finding that this allegation had no reasonable prospect of success.
12The applicant, however, makes a valid point about vicarious liability, although resort to common law principles of vicarious liability are a necessary since employers are deemed to be responsible for the discriminatory acts of their employees, pursuant to section 46.3(1) of the Code. Only the respondent's personnel could have cancelled the applicant's shifts in April 2011; therefore, the respondent would be deemed to be responsible for the cancellations if they amounted to a violation of the Code, with or without an amendment. The applicant now seeks to amend this timely allegation.
13In determining requests to amend pleadings under section 34 of the Code, 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 Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066, 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.
14The applicant did not request an amendment, but the particulars provided shift the legal characterization of the allegation from a reprisal for which the respondent could be deemed to be responsible to racial or ethnic discrimination for which respondent could also be responsible. Of course, the Tribunal dismissed all the applicant's reprisal allegations because they had no reasonable prospect of success. Hearing dates have not been set for this matter; therefore, the amendment comes at a relatively early stage of the process. The respondent has not identified any prejudice and indeed it appears from the respondent's submissions that it is fully able to defend itself regarding the April 2011 shift cancellation allegations. Accordingly, I am satisfied the applicant should be permitted to proceed with this allegation as enunciated at the summary hearing.
The Request to Amend
15It follows from this conclusion that the Application may continue, albeit only with respect to the April 2011 shift cancellation allegations. Accordingly, it is appropriate to consider the applicant's Request for an Order During Proceedings, filed on April 20, 2012 in which the applicant sought to amend the Application to add allegations of discriminatory or harassing behaviour that occurred in early 2012 (the “Request”). Specifically, the applicant alleges that her co-workers made negative ethnic and race-based comments about her. In one incident, a co-worker is alleged to have referred to the applicant as a “pork chop”, a derogatory name for a person of Portuguese origin, and in the other a co-worker is alleged to have said “we’ll fix her white ass” in reference to the applicant. The applicant submitted that these incidents are consistent with the harassment and discrimination the applicant experienced at work. The applicant also submitted that these incidents may be reprisals for filing an application to the Tribunal.
16The applicant and respondent both made submissions regarding the Request during the summary hearing. The applicant submitted the request was made in a timely manner and the respondent would have an opportunity to respond to the new allegations. Accordingly, the respondent would suffer no prejudice if the Tribunal grants the amendment. The respondent also submitted that allowing the Request is the most efficient outcome, as the applicant would be required to file a separate application otherwise.
17The respondent submitted that the Request was not timely because the new incidents were alleged to have occurred in early 2012, but the applicant did not request the amendment until April 20, 2012, i.e., the last business day prior to the summary hearing. The respondent submitted that the additional allegations will delay the Application. The respondent submitted that it is prejudiced because the applicant had not complained of the incidents. Consequently, the respondent had no opportunity to respond to it. As noted above, the Tribunal 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 when considering a request to amend. The request comes relatively early in the proceedings, as the hearing of the Application has not been scheduled. The applicant seeks to add incidents that are consistent with the remaining allegation from the original application and it appears that the same personnel may be involved. Consequently, combining the allegations into the same Application is in my view the most efficient manner in which to proceed. The scope of the original Application has already been drastically reduced; therefore, adding two relatively discrete allegations should not delay the proceedings significantly. Following the summary hearing and the filing of the Request, the respondent has investigated the new incidents and there is no indication the respondent will suffer any prejudice if Tribunal grants the request to amend. In my view the most just fair and expeditious manner in which to proceed is to allow the Request.
Order
18The Application shall continue to deal with the April 2011 shift cancellation allegation and the Request to amend the Application is granted.
Dated at Toronto, this 29th day of May, 2013.
”signed by”
Douglas Sanderson
Vice-chair