Miraka v. A.C.D. Wholesale Meats Ltd., 2014 HRTO 363

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jolando Miraka Applicant

-and-

A.C.D. Wholesale Meats Ltd. Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: March 14, 2014 Citation: 2014 HRTO 363 Indexed as: Miraka v. A.C.D. Wholesale Meats Ltd.

WRITTEN SUBMISSIONS

Jolando Miraka, Applicant Jamie Lynne McGinnis, Counsel

A.C.D. Wholesale Meats Ltd., Respondent Andrew Zabrovsky, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to add a ground of discrimination to his Application and to amend the remedy sought.

2By Application filed on June 13, 2013, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that the respondent discriminated against him when it terminated his employment the same day that he provided the respondent with a medical certificate regarding an injury he had sustained. In his Application, he sought $20,000 as general damages as well as an amount for lost wages.

3The hearing of the Application is scheduled for September 29, 2014.

Request to Amend Application

4By request dated February 17, 2014, the applicant sought to amend his Application to add family status as a ground of discrimination. He also sought to amend the remedies requested to include an additional $20,000 in damages for his family status discrimination claim.

5The applicant submitted that he only became aware that he may have been terminated due to his family status when he received the respondent’s Response on August 8, 2014. The Response refers to absences that the applicant took to take care for his children. In the Response, the respondent takes the position that the applicant was not suffering from a disability at the time of his termination. It submits that the termination occurred only because the applicant had shown the respondent that he could not attend work on a regular basis.

6The respondent objected to the applicant’s request to amend the Application on the basis that his allegations of family status discrimination are distinct and separate from those set out in the original Application. The respondent argued that the material facts underlying the applicant’s family status claim were known to him at the time he filed his Application. Further, it submitted that the applicant never raised a need for family status accommodation with the respondent and that he has provided no particulars supporting the need for such accommodation. As a result, the respondent submitted that the applicant’s family status claim stands no reasonable prospect of success. Finally, the respondent submitted that it will suffer prejudice if the applicant’s request is granted due to the applicant’s delay in making his request. The respondent stated that, if the request is granted, it will have to retract its witness statements, amend its pleadings and alter its approach to the litigation of the Application.

Amendment to add ground of discrimination

7In determining requests to amend applications, 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, Odell v. TTC, [2001] OHRBID No. 2; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

8Having considered these factors, I grant the applicant’s request to amend the Application to add the ground of family status. I do not accept the respondent’s submission that the request should be denied because the material facts underlying the applicant’s family status claim were known to him at the time he filed his Application. Although the applicant was aware of the reasons for his absences, he has stated that he was not aware at the time of his termination that these absences may have been a factor in his termination. It appears that the applicant did not become aware that these absences may have been a factor in his termination until he received the respondent’s Response. In my view, it would be unfair to the applicant in these circumstances not to permit him to amend his Application to challenge the actual reasons for his termination. Accordingly, the nature of the proposed amendment weights in favour of granting the applicant’s request to amend his Application.

9However, I agree with the respondent that the applicant delayed for a substantial period of time before making his request. If I were to accept the applicant’s claim that he was not aware that his family-related absences may have been a factor in his termination until he received the Response, he still delayed 6 months before bringing his request to amend. Perhaps more significantly, he waited until after the respondent had already filed its witness statements and the documents that it intends to rely upon at the hearing. Therefore, the timing of the applicant’s request, when considered on its own, would weigh against granting his request.

10On balance, I find that the unfairness of denying the applicant’s request to amend the Application would outweigh any prejudice to the respondent of granting it. The circumstances in this case are significantly different from cases where an applicant seeks to add a new set of allegations relying upon a completely different set of facts. The request in this case does not add new facts but instead challenges the explanation provided by the respondent for the termination as itself being discriminatory. In my view, the unfairness that would be caused to the applicant of not permitting him to challenge the actual reasons for his termination outweigh any prejudice to the respondent caused by having to amend its Response and/or witness statements to address the new ground of discrimination.

11I note that many of the reasons provided by the respondent for denying the applicant’s request are submissions in support of its view that there is no basis for the applicant’s family status claim. These submissions go to the issue of whether the applicant will make out his onus of proving discrimination on the ground of family status. That is an issue to be addressed at the hearing. This issue is clearly distinct from the the separate issue of whether the Tribunal should grant the applicant’s amendment request.

12For the reasons set out above, the applicant’s request to amend his Application to add the ground of family status is granted. The amendment is made without any determination by the Tribunal as to the merits of the allegations and without prejudice to any position the respondent may wish to take regarding these allegations.

Amended Remedy

13The applicant’s request to amend his claims for damages is also granted. 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.

14This 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.

Order

15For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application to add family status as a ground of discrimination is granted.

b. The applicant’s request to increase the monetary compensation sought in the Application by $20,000 is granted.

c. Within 21 days of the date of this Interim Decision, the respondent may file an amended Response to address the applicant’s claim of family status discrimination.

d. Within 14 days of receiving any amended Response, the applicant may file an amended Reply addressing any amendments to the Response.

e. Within 35 days of the date of this Interim Decision, both parties may file amended witness statements and/or further documents on which they intend to rely at the hearing.

16I am not seized.