Murphy v. Lia Sophia Canada, 2015 HRTO 1250

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Murphy

Applicant

-and-

Lia Sophia Canada

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: September 18, 2015

Citation: 2015 HRTO 1250

Indexed as: Murphy v. Lia Sophia Canada

WRITTEN SUBMISSIONS

Elaine Murphy, Applicant

Michael Hazan , Counsel

Lia Sophia Canada, Respondent

Laura Cassiani, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). When the Application was first filed, the allegation concerned the termination of the applicant’s employment with the respondent. The applicant’s employment was terminated when she was receiving long term disability benefits and working on a part-time basis. She alleged that the employment of other employees who were not disabled was not terminated and that the termination of her employment was related to her disability and that it was discriminatory on that basis.

2The Application was filed on December 24, 2014, and was delivered to the respondent, which filed a Response. The Response denied that there was any discrimination and stated that the reason the applicant’s employment was terminated was that the respondent was winding up its business and closing its operations in North America.

3Both parties consented to mediation, and a mediation was scheduled for July 22, 2015. On July 21, 2015, the parties advised that they had agreed to adjourn the mediation. The Registrar advised that in accordance with the Tribunal’s usual approach, the mediation would not be re-scheduled and that instead, a hearing would be scheduled. The hearing is now scheduled for February 5, 2016.

4On August 20, 2015, the applicant’s counsel filed a Request for Order During Proceedings, seeking to amend the Application to include allegations of harassment and discrimination in the period from January 2013, when the applicant returned to work in December 2014, the date of the termination of the applicant's employment, in addition to the allegations regarding the termination itself.

5The respondent opposes the Request to Amend. The respondent notes that the Request was filed well over a year past the time relevant to the new allegations. It states that it would be prejudiced by the amended allegations because of the passage of time, and especially because none of the people involved are still employed by the respondent’s company and documents may be difficult to find because the business is closed. The applicant argues that the Application as amended is timely since most of the events in relation to the new allegations occurred within one year of the filing of the Application.

6Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

7In this case, the original Application was filed on December 24, 2014, and it concerned the termination of the applicant’s employment on December 19, 2014. The Application was therefore filed in time. The amended Application includes allegations about events in the period from December 2012 to December 2014.

8The allegations in the amended Application appear to relate generally to allegations about the accommodation process following the applicant's return to work. The only specific particulars referred to are emails dated September 23, 2014 and October 31, 2014.

9As for the filing of the amended Application on August 20, 2015, those allegations were timely.

10I note that the respondent objects to the reference to the emails. Any objection to the admissibility of the emails can be dealt with in a later stage of the process.

11Based on the information provided by the parties, it appears to me that what has happened here is that the applicant has filed a new Application that replaces the original Application. The new Application includes allegations about the accommodation process following her return to work. The only specific particulars concern allegations arising out of emails in September and October 2014. Those allegations are timely and the applicant is entitled to bring those allegations to the Tribunal.

12To the extent that there are allegations about events prior to August 20, 2014, those allegations are not timely and the applicant is not permitted to bring those allegations to the Tribunal. However, evidence about earlier events may be necessary as background information.

13The respondent is entitled to file a Response to the new or amended Application.

14A Response must be filed within 35 days of this Interim Decision.