Konjet (Connie) Wolde-Yohannes v. Marconi Club of London, 2014 HRTO 1654

Human Rights Tribunal of Ontario

B E T W E E N:

Konjet (Connie) Wolde-Yohannes Applicant

-and-

Marconi Club of London, Sabatino Fabrizio and Theresa Fabrizio Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: November 14, 2014 Citation: 2014 HRTO 1654 Indexed as: Wolde-Yohannes v. Marconi Club of London

1A hearing in respect of this Application is scheduled for December 5, 2014 in London.

2The applicant filed a Form 10 Request for an Order During Proceedings on October 30, 2014, following on the heels of my October 24, 2014 Case Assessment Direction in which I denied the personal respondents an adjournment of the hearing because although the applicant failed to file her arguably relevant documents, she filed her documents to be relied upon at the hearing on October 21, 2014.

3The applicant requests she be permitted to:

a. amend her Application to include a claim of reprisal;

b. increase the amount of damages claimed to include $4745.00 in lost wages and $25,000 in general damages; and

c. amend her witness statement to include her loss of employment and remedies that flow from the loss.

4The personal respondents object to the requests. The Marconi Club did not respond to the Request for an Order During Proceedings.

5The applicant submits the amendments should be allowed because:

a. The Application was filed prior to her loss of employment;

b. The amendments are fair because the applicant did not have legal representation when she filed her Application;

c. There is no prejudice to the personal respondents because the allegations are not new - the respondents stated in the Response the applicant "voluntarily ceased working at the Club […]" and the applicant alleged in her Reply she was "forced to quit";

d. The timing of the request will allow the personal respondents adequate time to address the allegations at the hearing;

e. The requested amendments will not cause significant delays;

f. The allegations are not out of time; and

g. The applicant will be able to provide the full factual and contextual picture of the initial incident of alleged discrimination, the respondents' handling of the initial incident and the cessation of the applicant's employment, which all are related - to bifurcate the story would not make sense.

6The personal respondents object to the amendments because:

a. The applicant has had 11 months to amend her Application since she left her employment;

b. She has been represented by legal counsel since approximately June, 2014 and has had five months to seek amendments with legal counsel's help, but did not do so until fewer than six weeks before the hearing;

c. The requested amendments substantially expand the scope of the Application;

d. The applicant's allegations in the Application and Reply did not make it clear she intended to make a claim of reprisal;

e. The applicant has disclosed no documents and made no allegations to support a claim of reprisal;

f. The applicant seeks to amend her witness statement three days after delivering it to the respondents;

g. If the amendments are permitted, the parties will have to disclose documents relevant to those allegations, even though the hearing now is fewer than three weeks away, which is highly prejudicial to the personal respondents; and

h. The applicant never has disclosed her arguably relevant documents and only has disclosed partial documents related to lost wages.

the law regarding amendments to the Application

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(s). 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.

8With respect to the timing of the requests alone, the hearing is scheduled for December 5, 2014 and I find it prejudicial to allow the amendments to the Application to include a claim of reprisal at this stage. However, the prejudice could be alleviated with an adjournment of the hearing.

9In determining whether to allow the amendments to the Application, I have considered the personal respondents' submissions that the applicant has been represented since approximately June, 2014 and there appears to be no reason why the request to amend the Application was not initiated earlier. The applicant also has never provided her arguably relevant documents.

10With respect to the request to add a claim of reprisal, although the parties each referred to the applicant's employment ending, I agree with the personal respondents that it was not in a way that would have made the personal respondents aware of an impending claim of reprisal. The request to include the claim of reprisal would expand the scope of the Application fewer than four weeks before it is scheduled to commence, which I find would be prejudicial to the personal respondents.

11However, the allegations of reprisal are linked to the applicant's termination. If the amendment is not allowed, the applicant could commence a second Application alleging reprisal. In the interests of using the Tribunal's and parties' time and resources most efficiently, it makes sense to allow this amendment to the Application. Given the proximity of the hearing and the resultant prejudice to the personal respondents, however, the December 5, 2014 hearing date will be adjourned.

12On the same basis, I allow the applicant's request to amend her witness statement to add expected testimony regarding her job loss and remedies flowing from that job loss. Any prejudice to the personal respondents is alleviated by the adjournment.

13With respect to the request to increase the amount claimed for injury to dignity, feelings and self-respect and to add a wage loss claim, I do not find it prejudicial to allow these amendments. The Tribunal has the power to make remedial orders if the Tribunal determines a party to the Application has infringed an applicant's rights under Part 1 of the Code. These amendments are allowed.

14I allow the amendments in accordance with the test in Wozenilek v. 7-Eleven, 2009 HRTO 926, by "taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice." These requests do not raise new facts and, in light of my decision to allow an adjournment, there is no prejudice to the personal respondents. In allowing the amendments, it does not mean the applicant will be able to prove the allegations or that the Tribunal will award such damages.

order

15The request to amend the Application to include a claim of reprisal is granted.

16The request to amend the applicant's witness statement to include intended evidence with respect to her job loss and remedies flowing from that job loss is granted. The applicant's witness statement will include the information set out in paragraphs 7 to 11 of the October 24, 2014 Form 10 Request for an Order During Proceedings.

17The request to amend the Application to increase the amount of monetary compensation for injury to dignity, feelings and self-respect to $25,000 and to add a claim for wage loss of $4745.00 is granted.

next steps

18By no later than November 21, 2014, the applicant shall deliver to the respondents all her arguably relevant documents, or confirm in writing that she has already satisfied this requirement (through the delivery of documents that she intends to rely on at the hearing), and file with the Tribunal a Form 23 Statement of Delivery confirming she has done so.

19By no later than November 28, 2014, the applicant shall deliver and file with the Tribunal an amended Application and a Form 23 Statement of Delivery confirming delivery on all respondents. The amended Application must be limited to the amendments I have allowed in this decision.

20The respondents may within 21 days of their receipt of the amended Application deliver to the applicant and file with the Tribunal their amended Response. If the applicant has failed to satisfy the obligation to disclose all arguably relevant documents as set out in paragraph 18 above, the respondents should include any submissions they wish to make on this issue at this time.

21The applicant may within 14 days of her receipt of the amended Response deliver to the respondents and file with the Tribunal an amended Reply.

22By no later than January 9, 2015, applicant's counsel is directed to contact the Marconi Club and counsel for the personal respondents to identify mutually available dates within 8 to 12 weeks of the original hearing date and to provide this information to the Tribunal.