Anwar Pierre v. Adecco Employment Services Limited and Canadian Tire Corporation, 2016 HRTO 1054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anwar Pierre

Applicant

-and-

Adecco Employment Services Limited and Canadian Tire Corporation

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl Date: August 10, 2016 Citation: 2016 HRTO 1054 Indexed as: Pierre v. Adecco Employment Services Limited

WRITTEN SUBMISSIONS

Anwar Pierre, Applicant Jessica Ponting, Counsel

Canadian Tire Corporation, Respondent Laura Karabulut, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim decision is being issued in response to a Request for Order During Proceedings (“RFOP”) filed by the applicant on July 4, 2016. The respondent, Canadian Tire Corporation, has provided written submissions with respect to the RFOP.

3The RFOP requests an Order to amend his Application by allowing the applicant to expand remedies and to amend his application to include additional allegations relating to:

1. The lack of accommodation for his gradual onset injury;
2. Lack of accommodation when applying for a permanent job with Canadian Tire Corporation;
3. Systemic discrimination on the part of the respondents; and
4. The assertions made by Canadian Tire Corporation as outlined in Para. 11 of the applicant’s RFOP submissions.

the law regarding amendments to the application

4In considering requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendment, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondents. 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.

5With respect to the timing of the requests alone, mediation, to which all of the parties have agreed, has yet to take place and a hearing, if the parties fail to settle at mediation, has yet to be scheduled. Under the circumstances, I do not find it prejudicial to allow amendments to the Application at this stage.

Lack of Accommodation for his gradual onset injury

6This allegation concerns events that took place more than one year before the Application was filed. Clearly, the applicant would have been aware of the alleged event more than one year before the Application was filed on December 7, 2015.

7Pursuant to section 34 of the Code an application alleging a violation of the Code must be brought within one year of the incident or incidents to which the application relates.

8In this respect the applicant has failed to comply with his obligation under the Code. The applicant cannot circumvent his obligation under the Code by bringing forth this allegation as an amendment to the Application.

9With regard to the fact that the applicant did not have legal counsel when he made his Application, the Tribunal has noted that many, if not most, applicants before the Tribunal are not represented. The fact that an applicant did or did not have counsel is usually not material to a determination of good faith pursuant to s. 34(2) of the Code. In this case, the applicant’s general assertions about being unrepresented for a period of time are not sufficient to establish a reasonable explanation for his failure to raise this allegation within the limitation period. See, N.M. v. Ottawa-Carleton District School Board, 2012 HRTO 282, and Gordon v. The Manufacturers Life Insurance Company, 2012 HRTO 476.

10The request to amend the Application to include allegations with respect to the lack of accommodation for the applicant’s gradual onset injury is denied.

lack of accommodation when applying for a permanent job

11In my view, this allegation relates to the allegations in the original Application and simply documents ongoing issues between the applicant and Canadian Tire Corporation.

12The amendment is allowed.

systemic discrimination on the part of the respondents

13The applicant made no allegation of systemic discrimination in his original Application. The Application alleges failure to accommodate the applicant’s disability, not systemic discrimination against people with disabilities. In my view, to expand the Application to include system discrimination claims would not address the fundamental issue of whether the Applicant was appropriately accommodated by his employer. As such the amendment is not necessary. See Pazhaidam v. North York General Hospital, 2012 HRTO 363 at para. 27.

14The request to amend the Application to include allegations of systemic discrimination is denied.

The assertions made by Canadian Tire Corporation as outlined in para. 11 of the applicant’s RFOP submissions

15In my view, these allegations relate to the original allegation of discrimination in the Application and flow from the original allegations.

16The amendment is allowed.

expand remedies

17The applicant seeks to amend the Application by adding the following remedies:

a. Reinstatement by Canadian Tire in a suitable job;

b. $25,000.00 in general damages;

c. Special damages, including loss of employment income;

d. Various systemic remedies.

18I am satisfied that the Tribunal has the power to make the awards outlined in (a), (b), and (c) above even in the absence of a request for same. As such the amendment to include (a), (b), and (c) is allowed.

19Given that the request to include allegations of systemic discrimination has been denied, it is obvious that the request to amend to add various systemic remedies must be denied as well.

order

20The Tribunal orders:

1. The Application is amended to include:

a. Allegations regarding the lack of accommodation when applying for a permanent job with Canadian Tire Corporation;

b. Allegations regarding the assertions made by Canadian Tire Corporation as outlined in para. 11 of the applicant’s RFOP submissions.

c. The additional remedies of: (i) reinstatement by Canadian Tire Corporation in a suitable job; (ii) $25,000.00 in general damages; (iii) special damages, including loss of employment income.

2. All other amendment requests are denied.

3. The respondents may, within 14 days of this Interim Decision, deliver to the applicant and file with the Tribunal their amended Responses.

4. The applicant may, within 7 days of his receipt of the amended Responses, deliver to the respondents and file with the Tribunal an amended Reply.

21I am not seized.