Vigneault v. Aramark Canada Ltd., 2014 HRTO 1455

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

André Vigneault

Applicant

-and-

Aramark Canada Ltd. and Diane Browne

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: September 29, 2014

Citation: 2014 HRTO 1455

Indexed as: Vigneault v. Aramark Canada Ltd.

APPEARANCES

André Vigneault, Applicant

Delphine St. Jacques, Representative

Aramark Canada Ltd. and Diane Browne, Respondents

H.P. Rolph, Counsel

1This Interim Decision addresses a number of new issues that the applicant raised at the beginning of the September 3, 2014 hearing date. A number of hearing days have been held prior to this.

2A case management call was held on September 23, 2014 for the parties to make submissions about these issues. The issues pertain to the applicant seeking to amend his Application to include a new allegation of reprisal by introducing evidence pertaining to a vacancy at Hôpital Montfort for which he was not considered; a job interview at the end of August 2014; amending the monetary remedies he claims in his Application; and his reliance upon without prejudice communications between he and respondents’ counsel from January 2014 and May 2014. The parties made comprehensive submissions about these issues and I told them that I may issue bottom-line rulings with more fulsome reasons in any final decision that is issued.

3In this Interim Decision, I have issued bottom-line determinations of these issues. More fulsome reasons will be provided in any final decision that is issued.

Amending Pleadings

4Rule 1.7(c) of the Tribunal’s Rules of Proceeding permits the Tribunal to allow any filing to be amended.

5As set out in Ibrahim v. Hilton Toronto, 2012 HRTO 740 at para. 16:

In Wozenilek v. 7-Eleven, 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

Hôpital Montfort position

6On September 3, 2014, I issued an oral ruling permitting the applicant to testify about his interest in the Hôpital Montfort position in relation to his evidence about mitigating his losses. However, I am not prepared to permit the applicant to amend his Application to assert that not being considered for the Hôpital Montfort position is another incident of reprisal or discrimination against him by the respondents.

7The Application has already been amended once pursuant to Interim Decision, 2014 HRTO 347 (“the Interim Decision”), to permit the applicant’s allegation that he was reprised against when he was not considered for another position.

8At this stage of the proceedings, where the applicant’s examination-in-chief has essentially concluded and he is to commence his cross-examination, I find that it would be unfair to the respondents to permit this amendment. I recognize that it is a timely allegation in that it occurred in May 2014, but permitting the amendment would require the respondents to file another amended Response, which may prompt another amended Reply from the applicant. It may, according to the respondents, require additional witnesses to testify. I agree with the respondents’ counsel that the respondents are entitled to know the case against them in this proceeding, and to know this in a timely manner.

August 2014 Job Interview

9I am prepared to permit the applicant’s evidence about a job interview that he had in August 2014 as it too goes to his evidence about mitigating his losses.

Amending Remedies

10I am prepared to permit the applicant to amend the remedies that he is seeking. Of course, this will only be relevant in the event that his Application is upheld.

11In Robert v. 289900 Ontario, 2009 HRTO 653 at para. 13, the Tribunal stated:

The applicant has asked for new potential remedies to be added to the application in light of the possibility that she would not want to return to work for the respondent. Ultimately any remedy awarded by the Tribunal arises from a finding of discrimination and would be made in consideration of the parties’ arguments as to remedy. I cannot see the prejudice of allowing this amendment detailing the applicant’s possible position as to appropriate remedy. I will permit the requested amendments

relying upon without prejudice communications between the applicant and respondents’ counsel

12I am not prepared to permit the applicant to rely upon without prejudice communications between the applicant and respondents’ counsel, apart from the limited purpose set out in my oral ruling on September 3, 2014. In that oral ruling, I ruled that the May 6, 2014 letter, if it was introduced, would only be introduced as part of the applicant’s evidence about mitigation and for no other purpose, including a separate allegation that he was discriminated and/or reprised against.

13The applicant is attempting to introduce the January 2014 correspondence and the May 6, 2014 correspondence in support of his claims that he was further discriminated against, or reprised against, in relation to applying for a position in December 2013 and in May 2014 in relation to the Hôpital Montfort position.

14The January 2014 letters were considered by Vice-chair Kershaw in the Interim Decision when she considered the applicant’s request to amend his Application in relation to a December 2013 job position to which he applied but did not receive. In allowing the amendment, she specifically addressed the January 2014 correspondence, in para. 16 2. in which she held, “the amendment shall not include or make reference to content and details contained in the ‘without prejudice’ correspondence exchanges between the parties”. She did this, noting, at para. 13, “The letters in my view are part of settlement discussions and are confidential”.

15Not only did Vice-chair Kershaw determine the issue, but I cannot see how “without prejudice” communications between the parties can be introduced at a hearing as I recognize the broad legal principle that settlement discussions are not admissible. Accordingly, the January 2014 letters are not admissible. Similarly, the May 6, 2014 letter is also not admissible, apart from it being included as part of the applicant’s efforts to mitigate his losses.

16The hearing will continue as scheduled.