Cooper v. General Motors of Canada Limited, 2015 HRTO 1284

Human Rights Tribunal of Ontario

B E T W E E N:

Colleen Cooper

Applicant

-and-

General Motors of Canada Limited

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: September 25, 2015

Citation: 2015 HRTO 1284

Indexed as: Cooper v. General Motors of Canada Limited

introduction

1A hearing in respect of this Application is scheduled for February 3 and 4, 2016, in London.

2The applicant filed a Form 10, Request for an Order During Proceedings (“RFOP”), on July 16, 2015, to which the respondent filed a Form 11, Reply to a Request for an Order, on July 17, 2015.

3The applicant requests she be permitted to amend her Application to include events that have occurred since the filing of her Application on October 24, 2014, that she alleges constitute discrimination on the basis of a continued failure to accommodate her.

4The respondent objects to the request.

5The applicant submits the amendments should be allowed because:

a. The amendments include events that have occurred after the Application was filed and are a continuation of the events recounted in the Application;

b. The hearing has not been scheduled.

6The respondent objects to the amendments because:

a. The amendments are not “technical” amendments;

b. The amendments are not “particulars” of her existing allegations against the respondent;

c. The amendments are new events divorced from the allegations in the Application;

d. The applicant’s request to amend is untimely; and

e. The new allegations have no reasonable prospect of success.

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, the applicant’s RFOP was filed before the hearing was scheduled, but it is now scheduled for February 3 and 4, 2016, and the parties have delivered their arguably relevant documents to each other. However, it would not be prejudicial on this basis alone to allow the amendments to the Application at this stage given that the hearing is still almost five months away.

9There appear to be three new allegations of discrimination:

a. the respondent has tried to insist that the applicant work six days a week, rather than the five she medically is able to work;

b. the applicant, at the end of October, 2014, requested that her computer table be lowered because her right hand was going numb, but it was not done until January, 2015; and

c. the respondent made some changes to the applicant’s job on May 3, 2015, requiring her to work overhead with her left arm.

10With respect to the respondent’s repeated requests that the applicant work six days a week, the applicant states that once the applicant and her union provided the medical documentation to the respondent, the applicant was not required to work six days a week.

11Although the respondent raised the issue of this allegation potentially having no reasonable prospect of success, the test for whether or not an amendment to an Application will be permitted is as set out in paragraph 7, above, including a consideration of the nature of the amendment. Since the nature of this amendment is related to the original allegations in the Application, this amendment is permitted. It will not substantially alter the original allegations.

12The applicant’s other new allegation is with respect to the lowering of her computer, which did not occur until January, 2015, at which time she also was given a special hammer and mirror to enable her to perform her job within her restrictions. It appears the allegation of failing to accommodate her with respect to her right hand going numb may be related to the allegations in the Application in that she has a permanent restriction of not working above chest height. As such, this amendment is permitted as it will not substantially change the allegations in the Application.

13With respect to the statement that the respondent changed her job so she had to work overhead with her left arm, the applicant’s original allegations related to her right arm. The applicant asserts she told the respondent that despite having no restrictions related to her left arm, this required her to raise her chin and look over her head, which was contrary to her restrictions. The applicant asserts in the Application that she had a restriction of being unable to look over her head, and as such, this new allegation appears to be related to the original allegations.

14Although the respondent asserts that allowing the amendments to the Application would be prejudicial to it because it would expand the scope of the original Application and would require additional respondent witnesses, the alternative is that the applicant may commence a second Application with respect to the new allegations. Given that the new allegations are related to the original allegations, it is difficult to see how the respondent can assert significant prejudice.

15Finally, the applicant states in the RFOP that on January 12, 2015, she was put back to rotating among the three inspection jobs she had done before her injury, but she does not claim any discrimination in this respect. Accordingly, this does not appear to be relevant to the applicant’s existing allegations or a new allegation of discrimination of any type. For this reason I find it unnecessary to amend the allegation to include this statement.

16I 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 significantly new facts. In allowing the amendment, it does not mean the applicant will be able to prove the allegations or that the Tribunal will award such damages.

order

17The request to amend the Application is granted in part.

18The Application shall include the allegations set out in paragraphs 8 to 11 and 18 to 24 of the applicant’s July 16, 2015 RFOP.

19The other requests to amend the Application are not permitted.

next steps

20The respondent may within 21 days of their receipt of this interim decision deliver to the applicant and file with the Tribunal its amended Response.

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

22By no later than September 30, 2015, the parties shall deliver to each other any additional arguably relevant documents with respect to the allowed amendment, and file with the Tribunal a Form 23 Statement of Delivery confirming they have done so.

23The timelines in the Notice of Hearing for the delivery and filing of the parties’ documents for use at the hearing will remain unchanged.