Oshier v. Barrhaven Beauty Supplies Ltd., 2014 HRTO 1084

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chelsea Rae Dawn Oshier

Applicant

-and-

Barrhaven Beauty Supplies Ltd. o/a Trade Secrets

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 24, 2014

Citation: 2014 HRTO 1084

Indexed as: Oshier v. Barrhaven Beauty Supplies Ltd.

WRITTEN SUBMISSIONS

Chelsea Rae Dawn Oshier, Applicant

Sean Taylor, Counsel

Barrhaven Beauty Supplies Ltd. o/a Trade Secrets, Respondent

Karin Pagé, Counsel

Introduction

1By Application filed on October 31, 2013, the applicant alleged that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, she alleged that the respondent discriminated against her because of disability when it refused to extend her medical leave of absence and terminated her employment. She also alleged that the respondent discriminated against her by submitting a false record of employment.

2This Interim Decision addresses the applicant’s request to amend her Application. It also cautions the applicant about her confidentiality obligations and the consequences of conduct that may have the effect of interfering with the testimony of prospective witnesses in this case.

Applicant’s Request to Amend Application

Parties’ Submissions

3By Request for Order During Proceedings (“RFOP”) dated July 9, 2014, the applicant requested that she be allowed to amend her Application. The applicant’s counsel explained that the applicant had drafted her Application without the benefit of legal advice and that she had only retained counsel after the mediation in this matter. The applicant’s counsel submitted that, in reviewing the applicant’s medical records allegedly underlying the doctor’s notes provided to the respondent, it became clear that the applicant has disabilities that were not mentioned in the Application, namely a drug addiction and an eating disorder. The applicant’s counsel submitted that the respondent had knowledge of these disabilities, strongly suspected them, or they were reasonably apparent to the respondent.

4For this reason, the applicant’s counsel submitted that these disabilities should be before the Tribunal when it considers whether the respondent’s refusal to extend the applicant’s leave and her subsequent termination violated the Code. The applicant’s counsel submitted a rewritten Application that not only adds this information but expands upon the narrative set out in the Application.

5In addition to above, the applicant sought to increase the remedy sought in her Application.

6Counsel for the respondent opposed the applicant’s amendment request on the basis that she delayed in making it and the proposed amendment would unduly broaden the scope of the hearing. In particular, the respondent noted that all of the facts supporting the proposed amendment, if true, were known to the applicant at the time of her original filing. The respondent also submitted that it would be prejudiced if the amendment were granted as it will have less time available to prepare and respond to the new allegations.

Decision

7In considering requests to amend applications 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, for example, 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.

8In my view, the nature of the proposed amendment weighs in favour of granting it. The proposed amendment provides important information to clarify the precise nature of the applicant’s disability in relation to which she claims to have been discriminated. As confirmed by the applicant’s answers given in the amended Form 1A, the key incidents of alleged discrimination remain the respondent’s refusal to extend the applicant’s medical leave and the termination of her employment. I find that the proposed amendment does not significantly expand the scope of the allegations of discrimination. Instead, it adds alleged facts that are relevant to the Tribunal’s determination of whether the respondent’s refusal to extend the applicant’s medical leave and the termination of her employment violated the Code. While the applicant’s counsel did add some additional information in his proposed s. 8 – for example allegations relating to the suspension of the applicant’s benefits during her leave – much of this information is in the nature of reply to allegations contained in the Response.

9I have considered the fact that the added facts contained in the proposed amendment, if true, were known to the applicant at the time she filed her Application. While this is the case, it may well be that the applicant did not recognize the potential relevance of these facts since she was self-represented at the time she drafted her Application. Overall, I find that the nature of the proposed amendment weighs in favour of granting it.

10With respect to the timing of the request, the hearing is scheduled for October 24, 2014. The parties have already disclosed arguably relevant documents in their possession as required under Rule 16.1 of the Rules of Procedure. However, the disclosure of witness statements and documents intended to be relied upon at the hearing is not due until September 9, 2014. Although the respondent has asserted that it will be prejudiced by having less time to respond to the amended Application, I am not persuaded that any prejudice will be significant given the amount of time remaining before the hearing and the relatively focused nature of the amendment.

11As for the applicant’s request to amend the remedy sought in her Application, the respondent also opposed this request, taking the position that the remedy sought is excessive. I am not persuaded that this is a reason not to grant the applicant’s request to increase the remedy she is seeking. Therefore, I grant the applicant’s request to amend the remedy sought in her Application. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.

12This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue at the hearing.

13For the reasons set out above, the applicant’s request to amend the Application is granted. However, I note that it would have been preferable for the applicant’s counsel to propose paragraphs that he sought to add to the Application rather than setting out to redraft the Application altogether. In the circumstances, I will permit the Application to be amended by substituting the responses to questions 8-10 from the proposed Application attached to the applicant’s RFOP for the responses to those questions in the initial Application. However, the applicant’s counsel should take note that in the future he should propose actual amendments to the Application rather than re-writing the Application altogether.

CAution re. Applicant’s conduct

14In the Response to the applicant’s RFOP, the respondent’s counsel raised concerns about the applicant’s failure to maintain the confidentiality of information shared as part of the mediation process. I note that she also raised these concerns privately with the applicant’s counsel and that the applicant’s counsel responded by stating that any breach of confidentiality was an error and would not re-occur going forward.

15The applicant is cautioned that all information and documentation shared during the mediation is confidential. All statements made during the mediation are also confidential. In addition, any interference with the testimony of prospective witnesses can attract serious consequences. I trust that the applicant’s counsel will have explained these matters to his client to ensure that the same issues do not re-occur in the future.

order

16The Tribunal orders as follows:

a. The applicant’s request to amend the Application is granted. The Application is amended to substitute the answers to questions 8-10 found in the proposed Application attached to the applicant’s July 9, 2014 RFOP for the answers to these questions in the initial Application.

b. The respondent has filed submissions in response to the applicant’s proposed amendment in its Response to her RFOP. However, if the respondent wishes to file any additional submissions in response to the amendment, it may do so by September 2, 2014.

c. Since some of the additional information in the amended section 8 is in the nature of Reply, I do not consider it appropriate to permit the applicant a further right of Reply to the amended Response.

d. The deadline for the parties to file and deliver to each other their witness statements and the documents they intend to rely upon at the hearing remains September 9, 2014.

17I am not seized.