Smith v. Christian Horizons, 2016 HRTO 1414

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Smith Applicant

-and-

Christian Horizons Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard Date: November 2, 2016 Citation: 2016 HRTO 1414 Indexed as: Smith v. Christian Horizons

WRITTEN SUBMISSIONS

Catherine Smith, Applicant Self-represented

Christian Horizons, Respondent Jennifer Gleva, Representative

Introduction

1The applicant filed an Application on March 1, 2016 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of family status, marital status and reprisal or threat of reprisal.

2On May 24, 2016, the respondent filed a Response to the Application.

3On July 27, 2016, the applicant filed a Reply to the Response and a Request for an Order During Proceedings (“RFOP”) requesting to amend her Application (“request to amend”).

4On August 3, 2016, the respondent filed its Response to the request to amend.

5The hearing date in this matter has not been scheduled.

6This Interim Decision addresses the applicant’s request to amend.

Decision and Analysis

7In her request to amend, the applicant seeks to add information as follows:

1. Remedies that were not requested in the Application, including the following: a. that the harm cease and that financial remuneration be granted; b. back pay for missed pay periods effective March 27, 2016 until the applicant is able to fully resume her full-time employment; c. reimbursement for expenses incurred since October 30, 2015 while the applicant was off work; d. reimbursement for professional directed activities; e. job security; f. that the applicant be allowed to work part-time once medically cleared to do so; and g. that all persons with whom she has worked within the respondent community be protected from harm, harassment and demotion.

2. Background information about being a victim of domestic violence and having been the subject of death threats that have been reported to the Durham Regional Police.

3. Information about a diagnostic made on or about March 4, 2016 and related accommodation needs;

4. Information about an alleged 40 hour contractual position at another work location that the applicant wishes to be permanently transferred to. The applicant’s request reads as follows:

   To the best of my knowledge there is a 40 hour contract at the […] which is a non-managerial position. I believe this position is currently held by a female staff who has worked relief shifts at […] and therefore knows the people supported at this location. When this position was originally posted, I am told, was not posted as a 40 hour contract at the time. I have more seniority than the current employee who holds this position.

8The respondent consents to the applicant’s request to amend the Application to include additional remedies, but opposes all other requests to amend. It argues that the other requests are vague and unnecessary. The respondent also opposes the applicant’s filing of additional documents in support of the request to amend. The respondent maintains that those documents are irrelevant and outside the scope of the allegations contained in the Application.

9Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

10In determining requests to amend applications under section 34 of the Code, 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 R.M. v. Toronto Police Services Board, 2013 HRTO 73; 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.

Remedies

11I consider each request to amend separately.

12The Tribunal has generally granted requests to amend remedies. See for example Phillip v. Board of Governors of Exhibition Place, 2016 HRTO 434; Guzman v. Senton Incorporated, 2011 HRTO 1480; and Marino v. Compuware Corporation of Canada, 2011 HRTO 1390. It has taken this approach because in most cases there is no prejudice to any other party in granting such requests. At the end of the day it is for the Tribunal to determine what the appropriate remedy is and may on its own initiative seek submissions of the parties with respect to remedies even if not sought by the applicant.

13Accordingly, with the consent of the respondent, the request to amend the remedies is granted.

Information about Domestic Violence and Death Threats

14The respondent argues that the information about domestic violence and death threats was available to the applicant at the time she filed the Application. It submits that the applicant is trying to restate or expand the allegations in the Application. In addition, the respondent maintains that the information is vague and, as it was never made aware of the alleged death threats, it would require further investigation in order to respond to this information.

15The Application contains allegations that the respondent failed to ensure the applicant’s safety while she was working for the same employer as her estranged husband. It also refers specifically to the applicant as a victim of domestic violence and having been stalked since 2012. I find that the requested amendment to add information about domestic violence and death threats appears to be linked to the allegations outlined in the Application. In addition, the hearing dates have not been scheduled at this point. In my view there is adequate time for the respondent to address this information. I find there is no apparent prejudice to the respondent in granting this amendment.

16The request to add information about domestic violence and death threats is granted.

March 2016 Diagnostic and Related Accommodation Needs

17The respondent argues that the information about her March 2016 diagnostic addresses events that occurred after the applicant filed the Application. The respondent submits that the additional information about the medical restrictions is vague and repetitive and the applicant’s medical condition has already been addressed in the Response.

18The Application, Response and Reply all refer to the applicant’s ongoing medical condition. The Response in particular refers to the applicant’s medical condition up to May 2016. I find that the additional medical information related to a diagnosis made in March 2016 appears to be linked to the allegations outlined in the Application. It is also my view that there is no apparent prejudice to the respondent in granting this amendment.

19The request to add information about the March 2016 diagnostic and related accommodation needs is granted.

Full-time Position

20The respondent argues that the information about the alleged available full-time position is related to an event that occurred after the applicant filed the Application. The respondent maintains that the allegations do not provide sufficient details about the position, the employee who currently holds the position, and how the applicant was made aware of the position. The respondent submits that, given the lack of detail, it would be unable to respond to the new allegations.

21The Application includes allegations about the respondent’s failure to accommodate the applicant by failing to transfer her to a position in another location. The Response and Reply make reference to positions that the applicant could have applied for. Although the availability of other positions is directly related to the allegations in the Application, the applicant’s reference to one possible position held by a female employee is vague and unclear. The applicant provides insufficient details about the position, the employee in the position, how she was made aware of the position, whether she has applied for it and why this position is the one that she should be transferred to. See Brar v. 2369503, 2016 HRTO 81.

22The request to amend to add information about the alleged full-time contractual position is denied.

Documents Filed with Request to Amend

23The hearing dates have not been scheduled and as a result the parties have not delivered to each other and filed with the Tribunal their documents and witness statements pursuant to Rules 16 and 17 of the Rules of Practice. It is premature to make a determination about document disclosure.

Order

24The Tribunal orders as follows:

1. The proposed amendment to add remedies, as described in paragraphs 5 to 8 and 15 and 16 inclusively of the July 27, 2016 RFOP, is granted;

2. The proposed amendment to add information about domestic violence and death threats, as described in paragraphs 1 to 4 inclusively of the July 27, 2016 RFOP, is granted;

3. The proposed amendment to add information about the March 2016 diagnostic and related accommodation needs, as described in paragraph 9 of the July 27, 2016 RFOP, is granted;

4. The proposed amendment to add information about the full-time contract position, as described in paragraphs 10 to 14 inclusively of the July 27, 2016 RFOP, is denied;

5. The respondent may file an amended Response within 21 days of the date of this Interim Decision.

Dated at Toronto, this 2nd day of November, 2016.

“Signed By”

Josée Bouchard Vice-chair