Bender v. Limestone District School Board, 2015 HRTO 1297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shellie Bender

Applicant

-and-

Limestone District School Board and Canadian Union of Public Employees, Local 1480

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 30, 2015

Citation: 2015 HRTO 1297

Indexed as: Bender v. Limestone District School Board

WRITTEN SUBMISSIONS

Shellie Bender, Applicant

Victoria Shen, Counsel

Limestone District School Board, Respondents

Vincent Panetta, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to add her union, the intervenor Canadian Union of Public Employees, Local 1480 (“union”), as a respondent. It also addresses the applicant’s request to amend the remedy sought in her Application.

2In her Application, the applicant alleged that the respondent Limestone District School Board (“school board”) discriminated against her because of sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, she alleged that the school board discriminated against her when it failed to credit her with seniority when she was on maternity leave.

3The Tribunal deferred the Application pending the conclusion of a grievance filed by the applicant. The Tribunal re-activated the Application when the applicant withdrew her grievance.

REquest to add Union as respondent

4The applicant was self-represented at the time that she filed her Application but she subsequently retained counsel from the Human Rights Legal Support Center. The applicant’s counsel filed a Request for Order During Proceedings seeking to amend the application to add the applicant’s union as a respondent.

5The school board did not oppose the addition of the union as a respondent. The union did not respond to the applicant’s request and the time for doing so has passed.

Analysis

6The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
3. Would it be fair, in all the circumstances, to add the proposed respondent?

7Having considered the factors set out in Smyth, I find it appropriate to grant the applicant’s request to add her union as a respondent. The alleged discrimination in this case arises from a provision in the collective agreement entered into between the union and the school board. Therefore, the applicant’s allegations could support a finding that the union violated the Code, as the union is a party to the collective agreement. I am conscious of the fact that the hearing in this matter is scheduled for December 7-8, 2015. However, in the absence of any submissions from the union, I am not prepared to infer that the union would experience any prejudice from the applicant’s delay in adding it as a respondent.

8For these reasons, the applicant’s request to add the union as a respondent is granted.

REQuest to amend remedy

9The applicant filed a request in November 2014, to amend the remedy sought in her Application. At the time, she also requested that the Tribunal permit her to add a reprisal allegation to her Application. The Tribunal advised the parties that it would address the applicant’s request only if mediation was unsuccessful. After the mediation, the applicant withdrew her request to add the reprisal allegation. However, she requested to amend her Application to seek $20, 000 in monetary compensation in the nature of general damages.

10The school board opposed the applicant’s request to amend the remedy on the basis that it was raised too late in the proceedings.

11In 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.

12Having considered the factors set out above, I grant the applicant’s request to amend the remedy sought in his Application. The applicant raised her request in November 2014, at the time that she filed her Reply. Although she did not particularize the amount of monetary compensation she was seeking, the school board was on notice as of that time that she would be seeking to amend her Application to seek monetary compensation. The Tribunal has regularly granted requests to amend remedies up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

13This 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.

REquest to Strike THE School Board’s Form 11

14The applicant requested that the Tribunal strike the Response (Form 11) filed by the school board in response to the applicant’s request to add a reprisal allegation to her Application. The applicant argues that the information that the school board filed with its Form 11 is now moot since the applicant has withdrawn her request to add the reprisal allegation.

15I agree that the information contained in the Form 11 may well be moot. However, I see no reason to strike the materials filed by the school board from the record for this reason.

Order

16For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to add the Canadian Union of Public Employees, Local 1480 as a respondent is granted;

b. The applicant’s request to amend her Application to seek $20,000 as monetary compensation in the nature of general damages is granted;

c. The Canadian Union of Public Employees, Local 1480 must file a Response to the Application by October 19, 2015. If the applicant wishes to file a Reply to the union’s Response, she must do so by October 26, 2015; and

d. In the circumstances, the union’s pre-hearing disclosure obligations under Rule 16.1 of the Tribunal’s Rules of Procedure (“Rules”) are waived. However, all parties must make the pre-hearing disclosure required under Rule 16.2 and Rule 17 of the Rules. The deadline for this pre-hearing disclosure is extended to October 30, 2015.

17I am not seized.