Hartnell v. TEC Business Solutions, 2016 HRTO 1177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Hartnell Applicant

-and-

TEC Business Solutions, TEC Freight and Joe Prencipe Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: September 7, 2016 Citation: 2016 HRTO 1177 Indexed as: Hartnell v. TEC Business Solutions

WRITTEN SUBMISSIONS

Tracy Hartnell, Applicant Megan Evans Maxwell, Counsel

TEC Business Solutions, TEC Freight and Joe Prencipe, Respondents Ottavio Iacopini, Paralegal

Introduction

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

2The applicant has brought a Request for Order During Proceedings seeking to amend the Application by changing the spelling of the individual respondent’s last name from “Principe” to “Prencipe”, and adding TEC Freight as a separate respondent. TEC Freight and TEC Business Solutions were named in the Application as one respondent. The applicant is also seeking leave to amend the remedies sought in the Application. The respondents consent to amending the Application to note the correct spelling of the individual respondent’s last name. They also consent to naming TEC Freight as a separate respondent. The respondents oppose the applicant’s request to amend the remedies sought in the Application.

3In the Response, the respondents have sought a dismissal of the Application under section 45.1 of the Code on the basis that the substance of the allegations was appropriately dealt with in a formal independent investigation. The respondents have also filed a Request for Order During Proceedings seeking a second mediation. The applicant has not responded to this request.

Request to Dismiss

4In their Response, the respondents submit that the Tribunal should dismiss the application under s. 45.1 of the Code. Section 45.1 of the Code provides the Tribunal with the power to dismiss Applications if the substance of the Application has been appropriately dealt with by another proceeding. The respondents submit the allegations were appropriately deal with in a formal independent investigation.

5Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

6Section 45.1 is generally considered in two parts: (1) was there another “proceeding” and, (2) if so, did it “appropriately deal with” the substance of the application.

7The Tribunal’s jurisprudence has explained that section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere. The Tribunal’s jurisprudence has held that an internal investigation or internal complaints process does not generally constitute “a proceeding” within the meaning of section 45.1 of the Code. See for example, O’Brien v. Kingston (City), 2014 HRTO 678.

8In the circumstances of this case, I find that the organizational respondents’ own internal investigation cannot be found to constitute “a proceeding” as contemplated by s.45.1 of the Code. Therefore, even if it dealt with the same issues raised in the Application, it cannot be said to have appropriately dealt with the substance of the Application within the meaning of s. 45.1 of the Code.

9For these reasons, the respondents’ request to dismiss is denied.

Request to Amend the named respondents

10The respondents have consented to the applicant’s request to amend the Application by changing the spelling of the individual respondent’s last name to Prencipe and naming TEC Freight as a separate respondent. This request is granted on consent. The style of cause has been changed to reflect these amendments.

Request to Amend Remedy

11When deciding 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.

12Having considered the factors set out above, I grant the applicant’s request to amend the remedy sought in her Application. This Application is at a very early stage of proceedings. Therefore, I see no prejudice to granting the applicant’s request to amend the remedy she is seeking. The Tribunal has regularly granted such requests in past decisions 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 to any position the respondents may wish to take regarding this issue.

Second Mediation

14A mediation took place in this matter on May 25, 2016. The Application did not settle. The respondents are seeking a second mediation, with their new representative.

15The Tribunal’s practice is to schedule one mediation in a file; it does not offer a further mediation if the matter does not settle. As such, the Tribunal will not schedule a second mediation. That said, the parties are free to resolve the matter between themselves, or request mediation/adjudication at the commencement of the hearing. The Tribunal’s Mediation/Adjudication agreement is attached to this Interim Decision.

order

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

a. The Application is amended to name TEC Freight as a separate party. The spelling of the individual respondent’s last name has been changed to Prencipe.

b. The applicant’s request to amend her remedies sought is granted. The respondents may file an amended Response within 35 days of the date of this Interim Decision.

c. The respondents’ request to dismiss the Application is denied.

d. The respondents’ request for a second mediation is denied.

17I am not seized.