Rudy v. GEM Health Care Group, 2014 HRTO 34

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chantel Rudy

Applicant

-and-

GEM Health Care Group c.o.b. as Groves Park Lodge

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 9, 2014

Citation: 2014 HRTO 34

Indexed as: Rudy v. GEM Health Care Group

APPEARANCES

Chantel Rudy, Applicant

Chantel Tie, Counsel

GEM Health Care Group c.o.b. as Groves Park Lodge, Respondent

Jennifer Birrell, Counsel

1This is an Application filed under section 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 disability and marital status. At the time of filing her Application, the applicant was self-represented.

2The hearing is scheduled for February 20 and 21, 2014 pursuant to a Notice of Hearing dated July 9, 2013 (“the Notice”). In the Notice, the parties were advised of a July 30, 2013 deadline by which to exchange arguably relevant documents and a January 6, 2014 deadline by which to comply with their Rules 16 and 17 disclosure requirements. The parties are not required to file their arguably relevant documents with the Tribunal, although they are required to file a Form 23 indicating that they have provided this documentation to the other party.

3The respondent filed a Request for Order During Proceedings (“RFOP”) on August 20, 2013 in which it sought a Tribunal order requiring the applicant to produce a number of documents pertaining to her claim for damages for loss of income, including income from the applicant’s personal business, Safe Haven, and an order requiring a third party, Carefor, to produce a number of documents. The respondent asserts that the applicant commenced employment for Carefor while she remained off work with it for medical reasons.

4A case management conference call (“the call”) was held on November 20, 2013 to address the issues raised in the respondent’s RFOP. Both parties participated and both were represented by counsel. During the call, the applicant undertook to define the period for which she was seeking loss of wages by subsequent correspondence. She also agreed to: ask Carefor why there was a discrepancy between the amounts on her pay stubs versus the amount identified on her T4; provide a full contract from the Ministry of Training, if it was provided to her, as she had requested it; and provide the T4 of the living allowance she received from the Ministry of Training. She confirmed that there were no documents of incorporation for her personal business, Safe Haven, and that it did not have a separate bank account as she used her personal bank account for the business. She did not agree to provide a copy of her personal banking records as the respondent had requested.

5On November 22, 2013, the applicant filed correspondence with the Tribunal, in which she confirmed that the period for which she was seeking loss of wages was August 13, 2012 to March 6, 2013. She represented that during the relevant time period, the personal business only had one customer/client who paid $25.00, cash, per visit, for which no invoices or receipts were prepared. The applicant represented that the only existing record of income for her personal business is contained in the document labelled Cash Flow Forecast, which she had previously provided to the respondent. She confirmed that the discrepancy between the T4 from Carefor and the paystubs from Carefor, “in all likelihood arises from the mileage reimbursement amounts included on the paystubs, which is not considered income”.

6Attached to the applicant’s November 22, 2013 correspondence was various documentation. This included: an authorization and direction from the applicant to Carefor to respond to the respondent’s inquiries about her employment for the period August 13, 2012 to March 6, 2013 “the date the Respondent offered to reinstate her” (“the authorization”); the applicant’s 2012 income tax filing with Canada Revenue Agency (“CRA”); an unsigned copy of the Ontario Self-Employment Benefit contract with a stated intention to provide a signed copy if the office provided one to her as she had requested; T4s from the respondent and Carefor Health & Community Services; a universal child care benefit statement from CRA; two T4Es statements of employment insurance and other benefits; and Master Business Licence issued January 24, 2013 for her personal business.

7The respondent filed correspondence dated November 29, 2013 responding to the applicant’s November 22 correspondence and identifying various concerns it has with the disclosure to date. It submitted that it had difficulty in obtaining the applicant’s arguably relevant documentation and noted that it was not until after the HRLSC was retained that additional documentation was disclosed.

8One of the main concerns that the respondent identified with the November 22 disclosure was the inconsistency between the applicant’s representation that Safe Haven only received income, in cash, from one client, at the rate of $25.00 per visit, yet the Case Flow Statement showed varying sales amounts in the amounts of $80, $160, $195, $140 and $815. The respondent submits that such figures could not correspond with a fee of $25.00 per visit, inclusive or exclusive of HST. This, along with the Case Flow Statement, which shows that disbursements were made, is sufficient, the respondent submits, for the Tribunal to order production of the applicant’s personal bank account. It repeated its request for an order for production, as identified in its RFOP, and confirmed its position that it has never terminated the applicant’s employment. The respondent did not address the authorization that the applicant prepared for the respondent to contact Carefor.

9The applicant also filed a RFOP seeking to amend her Application to include general damages in the amount of $30,000 and to claim pre- and post-judgment interest, both of which had not previously been requested. Attached to the RFOP was an affidavit sworn by the applicant and commissioned by a lawyer different from her counsel. The applicant submits that when she filed her Application, she was self-represented and had not received any legal advice with respect to categories of or range of damages available to her. After the Response and Reply were filed, she contacted the Human Rights Legal Support Centre (“HRLSC”) and has since learned about the possibility of general damages being awarded in the event her Application is upheld by the Tribunal.

10The respondent filed a Response to the RFOP objecting to the applicant’s request to amend her Application and requesting that the Tribunal dismiss the applicant’s request because of the applicant’s conduct. In addition to the difficulties it has experienced in obtaining the applicant’s arguably relevant documentation, the respondent submits that the applicant omitted to state, in her affidavit, that she had been consulting with legal counsel since as early as June 2013. In this regard, the respondent referred to three emails, dated June 6, 2013, July 2, 2013 and August 7, 2013, from the applicant to the respondent’s counsel, in which the applicant makes reference to having a lawyer. Further, the respondent submits that the applicant’s request to amend her remedies is untimely as it was made more than a year after the last incident upon which the Application is based and prohibited by section 45.2 of the Code. The respondent did not file any case law in support of this submission.

11On January 6, 2014, the applicant filed correspondence with the Tribunal identifying the documentation that she has provided to the respondent in relation to its RFOP for production of arguably relevant documents.

12All of these, as well as the submissions made during the call, have been carefully considered by the Tribunal.

The Respondent’s Production Request

13I agree with the respondent that the applicant has an obligation to provide it with all arguably relevant documents in relation to the loss of wages that she claims, which she has now identified as being August 13, 2012 until March 6, 2013.

14In Lampi v. Princess House Products Canada Inc., 2008 HRTO 1, at para. 8, the Tribunal stated:

The threshold for production and disclosure of documents before the Tribunal is “arguable relevance” – not a particularly high bar. There must be some relevance and the party seeking production must demonstrate a nexus between the information or document sought and issues in dispute before the Tribunal: Neusch v. Ontario (Ministry of Transportation) (2002), 2002 CanLII 46508 (ON HRT), 43 C.H.R.R. D/171 (Ont. Bd. of Inquiry) at para 38.

15I appreciate that the applicant has now, with the assistance of her counsel, disclosed a number of documents to the respondent in an effort to fulfill her obligation to disclose arguably relevant documents. It appears that as of January 6, 2014, the documentation the applicant has now provided to the respondent is more extensive than what had been previously identified to the Tribunal as being disclosed; however as the Tribunal does not receive copies of arguably relevant documentation and has not received copies of some of the documentation referred to in the applicant’s January 6, 2014 correspondence, such as the banking statements for Safe Haven referenced at point 2, this is not exactly clear.

16I accept the respondent’s submissions that the banking information of the applicant’s personal bank account, which was also used for her personal business, is arguably relevant to the issue of what income the personal business received during the period being claimed for loss of wages.

17In this regard, I note that there appears to be a difference between the applicant’s November 22, 2013 assertion about having one client who paid $25 per visit, cash, and the reported income on the Case Flow Statement. Accordingly, I direct the applicant to immediately produce to the respondent the bank records or statements from the account that she used for both personal and business use for the period August 13, 2012 to March 6, 2013. I remind the parties about their obligations under Rule 3.3 of the Tribunal’s Rules of Procedure (“the Rules”) with respect to documentation obtained under the Rules.

18Furthermore, I direct the applicant to produce all documentation that has not been previously disclosed to the respondent, pertaining to her loss of income claim which she has identified from August 13, 2012 to March 6, 2013, to the extent that there is any outstanding, including, but not limited to:

a. Copies of all pay cheques, pay stubs, pay statements, employment records, T4s, and any other income tax records for the relevant time period;

b. Documents concerning employment or prospective employment with Carefor including any letters of offer, employment contracts, record of employment, and any documents referred to in (a) above concerning work performed with this employer;

c. Copies of all financial records for Safe Haven Home Health Care, including but not limited to financial statements, balance sheets, documentation concerning any grants, loans, statements of income and revenue, invoices, bank records (as ordered in para. 17 above), income tax statements and income tax records; and

d. Copies of all financial records relating to any income or revenue received whether as an employee, principal, partner, independent contractor, consultant, agent or otherwise.

19As the applicant has signed the authorization, at this point I decline to grant the respondent’s request that the Tribunal order Carefor to produce various documentation. This issue can be revisited if the respondent does not obtain the arguably relevant documentation pertaining to Carefor either directly from the applicant, as her January 6, 2014 letter implies has been fulfilled, or from Carefor.

The Applicant’s Request to Amend her Application

20As 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.

21I appreciate the respondent’s position that the applicant’s affidavit may be inconsistent to the references she made to having legal counsel in her three emails to the respondent’s counsel, which may become a credibility issue during the hearing. I also recognize the difficulties that the respondent had in obtaining the applicant’s arguably relevant documents, as least before her counsel was retained. However, the applicant is not setting out a new factual allegation, but is, instead, amending to include monetary compensation for injury to dignity, feelings and self-respect, in the event her Application is upheld, as well as pre- and post-judgment interest. Monetary compensation for injury to dignity, feelings and self-respect is a potential remedy awarded by the Tribunal when it upholds an application as is pre- and post-judgment interest.

22Permitting the applicant to amend her Application does not cause any prejudice to the respondent, which it has not raised in any event, and does not affect the course of the hearing.

23With respect to the respondent’s submission that the applicant’s request to amend the remedies is untimely as it was made more than a year after the last incident upon which the Application is based, the respondent did not provide any case law upon this point. Instead, I note that in previous decisions, the Tribunal has allowed amendments to applications, including remedial claims, prior to the commencement of a hearing, or at the hearing itself. See for example, Picard v. Nails Plus by Nicole, 2012 HRTO 1252 at para. 25; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 at para. 5; and Macan v. Strongco, 2013 HRTO 841at para. 145.

24I am prepared to allow the applicant to amend the remedies she is seeking to include $30,000 and pre- and post-judgment interest. The amendments are 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 these remedies.