Tardif v. ERCO Worldwide, a Division of Superior Plus LP, 2015 HRTO 676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marc Tardif Applicant

-and-

ERCO Worldwide, a Division of Superior Plus LP Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: May 25, 2015 Citation: 2015 HRTO 676 Indexed as: Tardif v. ERCO Worldwide, a Division of Superior Plus LP

WRITTEN SUBMISSIONS

Marc Tardif, Applicant Self-represented

ERCO Worldwide, a Division of Superior Plus LP, Respondent Richelle Pollard, Counsel

Introduction

1This Application is scheduled to be heard June 11-12, 2015. This Interim Decision addresses the respondent’s request that the Tribunal bar the applicant from adding new allegations to his Application by way of the witness statement he filed with the Tribunal. I also address the respondent’s request that the applicant not be permitted to seek remedies beyond those set out in the Application.

scope of the Application

2By Application filed on January 30, 2014, the applicant alleged that the respondent discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The narrative portion of the Application is one paragraph long and states in its entirety:

I was repeatedly threatened to be dismissed from my employment if I did not sign a consent form which allowed Human Resources complete and unrestricted access to all my medical data. I was advised to not sign this form. I was also harassed by this person during the course of my disability leave and this has resulted in an aggravation of my existing conditions.

3In answer to question A15 (“Explain why you believe you were discriminated against on the ground of disability or perceived disability.”), the applicant wrote “I have multiple repetitive strain injuries (RSIs) resulting from years of working on the computer and Ayesha Shah disregarded this and cut off my pay.” In answer to questions A15-A16 regarding his disability-related needs, the applicant answered that he needed to be paid while on medically-related disability leave and that Ms. Shah threatened him with dismissal if he did not sign the consent form required by the respondent. In response to Question A9 on the Application form which asks applicants to tick boxes to indicate the ways in which they believe they were discriminated against, the applicant ticked the following items “in discipline”, “in comments, displays, jokes, harassment or a poisoned work environment”, and “in being denied benefits, including time off for medical or other reasons. He did not select any other form of alleged discrimination including “in being denied necessary accommodation or modified work in the workplace.”

4In response to correspondence from the Tribunal asking the applicant to provide more detail, the applicant filed a second version of s. 8 of the Application form on March 2, 2014. In this second version of s. 8, the applicant provided a more detailed account of the events that led to the filing of his Application.

5The applicant also filed a Reply in which he responded to matters raised in the Response filed by the respondent. In his Reply, he argued that the Response contained a number of red herrings and stated he wished to focus attention on the central matter of his claim which he framed as “the inappropriate Consent Form I was threatened of being dismissed over if I did not sign.”

6On April 28, 2015, the applicant filed copies of the documents he intends to rely upon at the hearing as well as a witness statement for himself as required by the Tribunal’s Rules of Procedure. In his witness statement, the applicant raises the following ten issues:

a. failure, delays and misinterpretation of the employer’s duty to accommodate; b. failure to submit WSIB Form 7 when promised; c. being repeatedly threatened with dismissal for my refusal to sign an inappropriate consent form; d. failure to respond to my complaint about a Human Resources Manager’s misconduct; e. delaying the reinstatement of my salary payments after Sunlife decided to support my disability claim; f. delaying my third return to work attempt; g. failure to disclose independent medical report from psychiatric assessment; h. being sent to psychological counselling instead of participating in requested mediation; i. failure to provide copy of Long Term Disability policy contract when requested; j. delay in sending “Plan Sponsor Statement” to disability insurance carrier; and k. refusing to provide my Record of Employment (ROE) when requested.

7The applicant also sought to change the monetary remedy requested and to add twelve new non-monetary remedies.

Additional allegations contained in witness statement

Parties’ Submissions

8In its Request for Order During Proceedings (“RFOP”), the respondent claimed that the applicant sought to add 10 additional allegations that exceeded the scope of the Application. It submitted that it is improper for the applicant to seek to amend his Application and/or expand the allegations beyond those raised in the Application. The respondent requested an order prohibiting the applicant from doing so.

9In his Response to the respondent’s RFOP, the applicant submitted that he is not seeking to amend his Application. He argued that the nature of his Application has not been fundamentally changed as it relates to alleged disability-related discrimination. He claimed that his witness statement supported allegations contained in the second version of s. 8 of the Application form that he submitted on March 2, 2014.

Findings

10The scope of the Application encompasses the allegations that can fairly be said to have been set out in the Application and Reply. It is not enough for the applicant to say that they all relate to disability discrimination. The only allegations that form part of the scope of the Application are those that were can fairly be said to have been raised with any degree of particularity in either the Application or Reply.

11In my view, the following issues contained in the witness statement fall within the scope of the Application:

c. being repeatedly threatened with dismissal for his refusal to sign an inappropriate consent form; d. failure to respond to my complaint about a Human Resources Manager’s misconduct; f. delaying my third return to work attempt; g. failure to disclose independent medical report from psychiatric assessment; and h. being sent to psychological counselling instead of participating in requested mediation.

12All of the above allegations can fairly be said to be raised in the second version of s. 8 if the Application filed by the applicant on March 2, 2014 and/or in his Reply.

13The following allegations do not fall within the scope of the Application as set out in the Application and Reply:

a. failure, delays and misinterpretation of the employer’s duty to accommodate; b. failure to submit WSIB Form 7 when promised; i. failure to provide copy of Long Term Disability policy contract when requested; j. delay in sending “Plan Sponsor Statement to disability insurance carrier; and k. refusing to provide my Record of Employment (ROE) when requested.

14Neither the initial Application (including the more detailed version of s. 8 of the filed on March 2, 2015), nor Reply refer to any of the above allegations. There is simply no reference to an alleged breach of the duty to accommodate in either the Application or Reply. With regard to the WSIB form, the applicant specifically stated in his Reply that his WSIB claim was irrelevant to this Application. The last three alleged incidents occurred after the Application was filed and therefore they are also not mentioned in the Application or the Reply.

15The applicant did not file a timely request to amend his Application to include any of the above allegations. It is improper for him to seek to add these allegations by way of his witness statement.

16The allegations contained in para. 13 therefore do not form part of this Application. The applicant’s testimony will be limited to testimony in relation to the allegations set out in para. 11 above. The respondent sought an adjournment of the hearing if the Tribunal permitted the applicant to raise all eleven issues raised in his witness statement. In my view, the allegations set out in para. 11 above were not only raised in the Application or Reply, but were also addressed to some extent in the respondent’s Response. Therefore, I see no prejudice to the respondent of proceeding with the hearing scheduled for June 11-12, 2015. Nevertheless, if the respondent wishes to amend its witness statements to address any allegations set out in para. 11 that it did not view as forming part of the Application, it may do so. Any amended witness statements must be filed with the Tribunal and delivered to the applicant by June 5, 2015.

Additional Remedies sought

17In his witness statement, the applicant set out a list of headings of compensation that he would seek as a remedy in the case. The total amount listed in his witness statement is $53 438. This amount exceeds what was listed in his Application ($30 000), but it is less than the total listed in his Reply ($81 365). In his witness statement, the applicant also added twelve non-monetary remedies which are not listed in his Application nor in his Reply.

18The respondent objected to the applicant’s attempt to amend the remedy he is requesting in this case.

19If the applicant wished to amend the remedy he was seeking in this case, the appropriate way to do so would have been to file a Request for Order During Proceedings. Nevertheless, I will treat the “Demands” portion of his witness statement as a request to amend the remedy he is seeking in this case.

20I grant the applicant’s request. The Tribunal has regularly granted such requests in past decisions even when they are made shortly before the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050. The Tribunal retains the discretion to determine the appropriate remedy(ies) if it finds a violation of the Code in this case.

21This 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.

Mediation-Adjudication

22The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal either before the hearing or at the outset to the first day of the hearing.

Order/Directions

23For the reasons set out above, the Tribunal orders as follows:

a. The respondent’s request is granted in part. The applicant will be restricted to allegations contained in the Application and Reply – that is, those listed in para. 11 above. The allegations listed in para. 13 above do not form part of the scope of this Application and the applicant will not be permitted to testify in relation to them. If the respondent wishes to amend its witness statements to address any allegations set out in para. 11 that it did not view as forming part of the Application, it may do so no later than June 5, 2015.

b. The applicant’s request to amend the remedy sought in his Application is granted. The monetary remedy sought is amended to $53 438. The Application is also amended to add the twelve non-monetary remedies sought on p. 19 of the applicant’s witness statement. This 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.

c. The June 11-12, 2015 hearing will proceed as scheduled.