HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sabina Mulosmani
Applicant
-and-
14475764 Ontario Inc. o/a Express Employment Professionals Corporation
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Mulosmani v. 14475764 Ontario Inc. o/a Express Employment Professionals Corporation
WRITTEN SUBMISSIONS
Sabina Mulosmani, Applicant
Self-represented
14475764 Ontario Inc. o/a Express Employment Professionals Corporation, Respondent
Daphne Fedoruk, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and sexual solicitation or advances. The applicant alleges that she was subject to three incidents of unwanted touching while working for the respondent, each on a different date in October and November 2013. The hearing of this matter is scheduled for October 16 and 17, 2014.
2On September 19, 2014, the applicant filed a Request for an Order During Proceedings seeking to amend the Application and also seeking an order requiring the respondent to provide the addresses of several of its employees so that the applicant may summons them to testify. In light of the impending hearing dates, the Tribunal directed the respondent to file its Response to the Request by September 29, 2014 and the respondent complied with this direction.
Request for Witness Information granted in Part
3The respondent describes itself as a temporary help agency. Accordingly, the respondent places its employees, such as the applicant, on temporary assignments with its clients. The alleged incidents of harassment occurred while the applicant was on such assignments. There is no dispute that the applicant complained to the respondent about the alleged incidents on or about November 26, 2013. Given the nature of the applicant’s work, she would not necessarily know the people with whom she works on any given assignment. Accordingly, with the exception of one incident, the applicant provided the respondent with the physical descriptions of her alleged harassers, as she did in the Application. In its Response, the respondent states that, based on these descriptions, it identified three individuals to review: Saeed Seid, Mohamed Kassas and Desmond Randolf Wright. Following its investigation, the respondent concluded that the applicant’s allegations could not be substantiated.
4The applicant requests that the Tribunal order the respondent to provide contact information for Mssrs. Seid, Kassas and Wright, as well as “Michelle” (described as the Catering Manager), Aslam Mahida (who the applicant identified by name) and Andrew Foster. The applicant states that she wishes to summons these individuals, but does not have their contact information.
5The respondent opposes this Request and submitted that only one of the individuals in question is currently in its employ and that “Michelle” is employed by one of its clients and therefore the respondent does not have her home address. The respondent also submitted that the applicant has never identified the individuals she alleges harassed her by name and the respondent interviewed employees who possibly fit the physical description the applicant provided. Accordingly, the respondent submitted that there is no evidence that these individuals are the men who allegedly touched the applicant.
Analysis
6As the respondent noted, the burden is on the party who delivers a Summons to establish that the witness’s proposed evidence is relevant to decide the issues in the proceeding and is admissible at the hearing. See Pieters v. Toronto Police Services Board, 2013 HRTO 1987. In this case, it appears that the applicant only knows the name of one of the men alleged to have harassed her at work and assumes that the other alleged harassers are the individuals that the respondent interviewed based on the physical descriptions she provided. With the exception of “Michelle”, the witness statements the applicant filed indicate that the witnesses she intends to summons will provide relevant testimony about their conduct towards her, again assuming these individuals are the men she alleges harassed her. This situation is less than ideal and might have been avoided by more diligent efforts by the applicant or if the parties had worked together to positively identify the applicant’s alleged harassers at the time she made her complaint. In any event, the respondent identified several individuals who seemed to meet the applicant’s description and this identification is the best estimate of the identity of the alleged harassers.
7Rule A3.1(b) of the Tribunal’s Rules of Procedure states as follows:
A3.1 The rules and procedures of the tribunal shall be liberally and purposively interpreted and applied to:
(b) allow parties to participate effectively in the process, whether or not they have a representative
In the unique circumstances of this case, it is in my view appropriate to grant the applicant’s request in part in order to allow her to participate effectively in the Tribunal’s processes. The respondent shall be required to provide the last known address and telephone number in its records for the individuals in question who are or were its employees. The respondent obviously does not have any contact information for “Michelle”.
Request to Amend Denied
8In 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.
Analysis
9In my view, the amendments the applicant seeks to make to the Application are more in the nature of particulars than amendments. However, the applicant does seek to add some factual allegations that she did not include in the Application or the Reply, including allegations of an apparent reprisal, and includes legal arguments about how the alleged behaviour she experienced amounted to sexual harassment. The applicant did not give any reasons for the requested amendments, which come very late in these proceedings. As the respondent noted, all of the new allegations the applicant wishes to add to the Application occurred at the time of the three alleged incidents, i.e., before the Application was filed. The respondents would have little time to investigate and respond to the new allegations, which is complicated by the fact that the applicant states that many of the employees it interviewed when the applicant complained are no longer in its employ. In these circumstances, I accept that the respondent would suffer prejudice if the amendments are allowed. This aspect of the Request must be denied as a result.
Order
10The Tribunal orders as follows:
- Within five days of the date of this Interim Decision the respondent shall provide to the applicant the last known address and telephone number that it has in its records for the following individuals:
a. Desmond Randolph Wright,
b. Aslam Mahida,
c. Saeed Seid, and
d. Mohammed Kassa
- The Request to amend the Application is denied.
Dated at Toronto, this 6th day of October, 2014.
“signed by”
Douglas Sanderson
Vice-chair