Dautey v. Hydro One, 2015 HRTO 382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isaac Dautey Applicant

-and-

Hydro One Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: March 25, 2015 Citation: 2015 HRTO 382 Indexed as: Dautey v. Hydro One

WRITTEN SUBMISSIONS

Isaac Dautey, Applicant Self-represented

Hydro One, Respondent Canadian Union of Skilled Workers, Proposed Respondent Dana McDonald, Counsel Carolyn Hart, Counsel

1By Application filed December 10, 2013, the applicant alleges that the respondent discriminated against him in his employment on the basis of his race and colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the applicant was subjected to discriminatory comments and unfair discipline by the respondent and its employees.

2A hearing of this Application is scheduled for June 19, 2015.

3The applicant filed a Request for an Order During Proceedings (RFOP) dated February 1, 2015, asking to amend his Application and to add the Canadian Union of Skilled Workers (“the Union”) as a respondent. This Interim Decision addresses the applicant’s requests.

APPLICANT’S REQUEST TO AMEND APPLICATION

4In his request to amend the Application, the applicant is seeking to include additional facts regarding his interactions with the employees he had named in the Application. The amendments do not contain any particulars of dates of the further alleged incidents. However, the requested amendments contain statements to indicate this treatment, which he alleges to be discriminatory, has occurred for over 6 years now. The applicant has provided no explanation as to why he is now making allegations about events that occurred six years ago.

5The respondent opposes the applicant’s request to amend the Application. The respondent submits that proposed amendments contain new allegations which are untimely and has provided no reasons for the delay in advancing these new allegations.

6In 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.

7Having considered these factors I deny the applicant’s request to amend the Application. The applicant has not provided sufficient details about the dates of the newly alleged incidents. Because of the lack of details, the Tribunal cannot assess whether these are new allegations are about events that occurred prior to the dates of the events alleged in the Application. Without further details, the Tribunal cannot assess whether the respondent would be prejudiced if the amendments were allowed, and cannot determine whether there is an issue that these new allegations are outside of the one year limitation for filing an Application at the Tribunal.

APPLICANT’S REQUEST TO ADD THE UNION AS A RESPONDENT

8The applicant’s RFOP also requests that the Union be added as a respondent. The respondent takes no position on the request to add the Union.

9The respondent notes in its Response that the applicant had filed a grievance challenging the discipline that is part of the applicant’s allegations in the Application. The respondent alleges that the applicant did not accept the negotiated resolution. The respondent states that no Code-related issues were raised in the grievance.

10The Application was delivered to the Union. The Union did not file a Response.

11The Union responded to the Request and notes that the Application made no allegations respecting it and that there are no facts alleged that could support a finding that the Union has violated the applicant’s Code rights. In the addition, the Union alleges that because of the applicant’s delay in making this request and the lack of particulars, it would be difficult for the Union to make a full answer to the applicant’s allegations.

12The legal test to be applied by the Tribunal when a request is made to add a party has been set out in a number of Tribunal decisions including Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

13In Smyth the identified factors to be considered where a party seeks to add a respondent, at para, 7:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) Would it be fair, in all the circumstances, to add the proposed respondent?

14The applicant alleges that the Union did not support him and that is the reason why he is requesting that the Union be added as a respondent. In Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996, the Tribunal stated as follows at para. 33:

Assuming that the Code also applies to this aspect of a union’s relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

15The applicant has failed to identify any events which could give rise to a finding that the Union has violated his Code rights. The applicant appears to be dissatisfied with the Union’s representation of his interests. However, this is not a basis to add the Union.

16For these reasons, the applicant’s request to add the Union as a respondent is denied.

ORDER

17The applicant’s Requests to amend the Application and add the Union are denied.

18The parties are reminded that the documents that they intend to rely on at the hearing and their witness statements are due by May 5, 2015.

19I am not seized.