Baetens v. Wal-Mart Canada Corp., 2016 HRTO 1219

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Baetens

Applicant

-and-

Wal-Mart Canada Corp., Jeff Hunter and Craig King

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: September 19, 2016

Citation: 2016 HRTO 1219

Indexed as: Baetens v. Wal-Mart Canada Corp.

WRITTEN SUBMISSIONS

Michelle Baetens, Applicant

Ron Montes, Counsel

Wal-Mart Canada Corp., Jeff Hunter and Craig King, Respondents

Casey Dockendorff, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend her Application.

2By Application filed on May 25, 2016, the applicant alleged that she was discriminated against because of disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, the applicant alleged that she was discriminated against when she was required to compete for a position that she was performing as accommodated work and when her employment was terminated because she could not work Saturdays due to her eldercare responsibilities. The events set out in the Application took place between February and May 2016. The applicant was self-represented when she filed the Application.

3The respondents filed their Response to the Application on July 13, 2016.

4By Request for Order During Proceedings (“RFOP”) filed August 3, 2016, the applicant’s newly retained counsel sought to amend her Application. The RFOP included an amended Application. The amended Application appears to provide greater detail regarding the history of the applicant’s workplace injury leading to the accommodated work and additional information concerning the events that took place between February and May 2016, including allegations of harassment during this period. The amended Application also refers generally to harassment from 2013 onwards. The amended Application amends the applicant’s remedies, and seeks an award of punitive damages.

5The respondents oppose the applicant’s amendment request on the following grounds: (a) the allegations of discrimination and harassment from 2013 to 2015 are out of time; (b) the allegations of harassment in 2016 substantially alter the original Application; and (c) the Tribunal has no jurisdiction to award punitive damages.

findings

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.

7The amended Application provides further detail about the events that led to the applicant’s workplace injury and the work the applicant performed following the injury. It also provides additional information concerning the allegations of discrimination in 2016. In general, the amended Application provides greater detail regarding the allegations of discrimination set out in the original Application and a legal context for those allegations. The applicant’s human rights allegations are summarized at paragraph 11 of the amended Application. These are essentially the same allegations that were made in the original Application. Although paragraph 11(a) states the allegations commenced in January 2013, it appears that the date may be a typographical error.

8Having considered the factors set out above, I grant the applicant’s request to amend the Application. This Application is at a very early stage of proceedings. While the amended Application adds additional allegations of harassment in 2016, there is no prejudice to the respondents resulting from these amendments. They are not out of time and the applicant could, theoretically, file a new Application.

9That said, I agree with the respondents that there are some issues with respect to some of the allegations in the amended Application. One, it refers to harassment in 2013 in a general way. It is unclear to me whether this is a separate claim of discrimination. If it is a separate claim of discrimination, there is an issue as to whether it is timely. Two, the amended remedies include a claim for punitive damages. I agree with the respondents that the Tribunal does not award punitive damages.

10The applicant’s request to amend the Application is granted subject to the following directions.

Order

11The applicant is directed to file an amended Application within 21 days of the date of this Interim Decision. The amended Application should clarify the following:

a. The information that is background information;

b. Whether there is a separate claim being made for allegations of discrimination in 2013;

c. The dates for the allegations of discrimination in 2016, including the dates set out in paragraph 11 of the amended Application attached to the RFOP;

d. The remedies sought that are within the jurisdiction of the Tribunal.

The amended Application need not set out the applicable law.

12The respondents may file an amended Response within 21 days of receiving the amended Application.

13In the event the applicant is making allegations of discrimination in 2013, the timeliness of those allegations will be addressed after the amended pleadings have been filed. As the parties have agreed to proceed to mediation, this issue may be addressed after the mediation, if it is unsuccessful.

14I am not seized.