Kilpatrick v. Ontario (Attorney General), 2015 HRTO 1301

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Kilpatrick

Applicant

-and-

Ministry of the Attorney General; The Premier of Ontario; The Secretary of Cabinet and Clerk of the Executive Council and the Association of Management, Administrative and Professional Crown Employees

Respondents

Interim DecisION

Adjudicator: David Muir

Date: October 1, 2015

Citation: 2015 HRTO 1301

Style of Cause: Kilpatrick v. Ontario (Attorney General)

1This is an Application alleging discrimination in employment on the basis of disability, family status, marital status, sex and reprisal.

2The respondents Ministry of the Attorney General; The Premier of Ontario; The Secretary of Cabinet and Clerk of the Executive Council (the Crown respondents”) include the applicant’s employer. AMAPCEO is the applicant’s bargaining agent.

3In a Case Assessment Direction issued on July 16, 2015, the Tribunal granted a number of Requests of the respondents including requests for summary hearing to determine whether or not all or part of this Application should be dismissed because it has no reasonable prospect of success. The Tribunal also granted the Request of AMAPCEO that its initial Response not be shared with the other parties because it could disclose privileged information with the employer. In his Reply the applicant has taken issue with the non-disclosure of the AMAPCEO’s Response to him. AMAPCEO did not respond to these issues in its Response to the Crown’s Request.

4The summary hearing has been scheduled to take place on February 22, 2016.

5The applicant, who is now represented by counsel, filed a detailed Reply to the Response of the Crown respondents. As indicated above the AMAPCEO initial Response was not shared with the applicant.

6The respondents have all requested that substantial portions of the Reply be struck as not proper Reply. AMAPCEO concurs in this Request as the Reply relates to it. The applicant opposes the Request.

7The Request is denied. While I agree that the Reply is not properly characterized as a Reply, the Tribunal has generally taken a non-technical approach to pleadings, at least at this preliminary stage of the proceeding. Having reviewed the Reply as it relates to the Crown respondents, it greatly expands on what are, beyond the detail with respect to the tragic events in 2007, very vague and general assertions alleging a failure to accommodate the applicant for unidentified mental health and family issues. The Reply provides further details of these very general allegations. As such it can be considered to be an amendment to the Application providing particulars of the claim as against the Crown respondents.

8As regards AMAPCEO this is even more obviously the case as the Application was entirely devoid of any particularized allegation against the applicant’s bargaining agent.

9I also note that the Reply includes argument which again might not be strictly speaking Reply but again the Tribunal has generally taken a non-technical approach to the pleadings at a preliminary stage of the proceeding.

10Accordingly I decline to grant the Request. The Reply will be treated as if it were an amendment of the Application at the pleadings stage. The respondents are of course entitled to Respond to the particularized allegations of the Applicant and in the circumstances are directed to do so within 35 days of the date of this Interim Decision.

11As indicated the applicant takes issue with the granting of AMAPCEO’s request that it’s initial Response not be shared with the other parties. The applicant did not respond to this aspect of the Request at the time. If AMAPCEO takes issue with its Responses, either its initial Response or any further Response, being shared with any party it may seek to renew its Request within 14 days of the date of this Interim Decision failing which its Response(s) will be shared as in the normal course.

12The Tribunal makes the following Orders and Directions:

a. The Crown respondents’ Request is denied.

b. The respondents shall deliver and file Responses (Form 2) to the amended Application by no later than 35 days after the date of this Interim Decision.

c. The applicant shall deliver and file any Reply to the Responses no later than 7 days after receiving the respondents’ materials.

d. If the respondent AMAPCEO seeks to renew its request that its Response(s) not be shared with any party it will do so within 14 days of the date of this Interim Decision failing which its Response(s) will be shared with the parties as in the normal course.

e. The Summary Hearing will proceed as scheduled barring further Direction from the Tribunal.

13I am not seized.