Arocha v. Bombardier Inc., 2016 HRTO 1477

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Arocha

Applicant

-and-

Bombardier Inc.

Respondent

-and-

Unifor, Local 112

Affected Party

INTERIM DECISION

Adjudicator: Bruce Best

Date: November 17, 2016

Citation: 2016 HRTO 1477

Indexed as: Arocha v. Bombardier Inc.

WRITTEN SUBMISSIONS

Laura Arocha, Applicant

Self-represented

Bombardier Inc., Respondent

Jennifer Nault, Counsel

Introduction

1This Application was filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 10, 2014, alleging discrimination in employment on the basis of disability and gender.

2The Application was deferred pending the outcome of several grievances. This decision addresses the applicant’s Request to reactivate and amend the Application.

Background

3The Application was deferred by order of the Tribunal on November 27, 2014 pending the outcome of related grievances; 2014 HRTO 1713 (the “2014 Interim Decision”).

4The 2014 Interim Decision also granted the applicant’s request to amend her Application to include additional allegations of reprisal and harassment.

5On September 21, 2015, the Registrar sent a letter to the parties directing the applicant to advise the Tribunal of the current status of the grievances. The applicant responded on October 5, 2015, and indicated that she had asked her union, Unifor (“the union”), about the status of her outstanding grievances but that she had not had a response. On October 23, 2015, the applicant advised the Tribunal and respondent by email that the above three grievances were not yet resolved.

6On November 9, 2015, the applicant filed a Request to Re-activate a Deferred Application (“Request”), where she claims that on October 26 or 27, 2015, she learned that the grievances had actually been settled between the union and respondent in April 2015. The applicant’s request also contained numerous additional allegations respecting incidents in the workplace throughout 2015.

7The respondent confirmed the grievances had been settled in April 2015. It also took the position that the applicant had provided no valid reason for the delay in seeking to have the Application reactivated. The respondent further objected to the Application being amended to include the additional allegations set out in the Request.

8On January 28, 2016, I issued a Case Assessment Direction (“January CAD”) directing the respondent to indicate whether it was challenging the applicant’s claim that she was not aware until October 2015 that the grievances had been settled. I also directed that if the applicant wished to amend her Application, she should file a formal request to do so.

9The respondent did not file any submissions in response to the January CAD. The Applicant filed a Request to amend her Application, which was opposed by the respondent.

10The Tribunal subsequently directed the respondent to provide copies of certain outstanding grievances it had referred to in its earlier submissions. The respondent did not answer these requests, and a further Case Assessment Direction was issued on August 16, 2016, directing the respondent to file the grievances with the Tribunal. The respondent did so on August 31, 2016. No information as to the current status of these grievances, or their relevance to this Application, has been raised by either party or the union.

11For the reasons below, the Application is reactivated, and the request to amend the Application is granted.

Delay in Seeking Reactivation

12The grievances which were the basis for the deferral were resolved on April 21, 2015, apparently along with a number of other grievances as part of the negotiations between the respondent and the union with respect to a new collective agreement. The applicant claims she was unaware that her grievances had been resolved until the end of October 2015, and she filed her request to re-activate shortly thereafter. The respondent does not challenge the applicant’s claim that she was not aware the grievances had been resolved in April 2015.

13Rule 14.4 of the Tribunal’s Rules of Practice requires a request to reactivate a deferred Application to be brought within 60 days of the completion of the other proceeding. It is clear that the Request to reactivate was outside this timeframe. The question is whether I should exercise my discretion to extend this time limit.

14The Tribunal has broad discretion to extend a time limit under the Rules in order to provide for the fair, just and expeditious resolution of any matter before it. The analysis for granting an extension under Rules 1.7.2 and A4.2 is less stringent than the test for granting an extension of time to file an application under s.34(2) of the Code, or for filing a Request for Reconsideration under Rule 26.5.1. See Hudson v. Kingston (City), 2013 HRTO 2006 at paras. 19-25, Oliver v. South Simcoe Police Services Board, 2012 HRTO 863 at paras. 16-19, and Ma v. University of Toronto, 2015 HRTO 1551, at paras. 27-29.

15In the present case, there is no indication that the applicant was, prior to October 2015, aware that the respondent and the union had already resolved her grievances. She acted promptly to request reactivation once she learned the grievances had been settled. It would be unfair in such circumstances not to extend the time under Rule 14.4. The Application is, therefore, reactivated.

Additional allegations

16Following the January CAD, on March 6, 2016, the applicant filed a formal Request to amend her Application to include allegations respecting incidents from October 7, 2014 to May 29, 2015. The respondent opposes the request on the basis that some of the incidents occurred more than a year before March 6, 2016 and are untimely, that it would be prejudicial to the respondent to have to respond to these allegations at this time, and that the allegations do not appear to raise any Code issues.

Delay

17Section 34(1) of the Code reads as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

18The respondent’s argument is that the time for raising new allegations in a request to amend should be determined by the limitation period under s.34(1) of the Code, based on the date the Request was made. Though a request to amend is determined under Rule 1.7.c, and not by s.34 of the Code, the timing of a request is one of the factors generally considered in determining whether to permit an amendment, and it is relevant to consider whether the allegations would be timely if they were part of a new application. In the present case, some of the incidents in the proposed amendments occurred within a year of the Request being filed. The question is whether the older incidents would form a “series of incidents” with the timely incidents.

19The Tribunal has defined a “series of incidents” as “a number of things or events of the same class coming one after another in spatial or temporal succession”. See Pakarian v. Chen, 2010 HRTO 457 at para. 25.

20The proposed amendments include a number of alleged incidents which all relate to her ongoing treatment on the job by her supervisor and co-workers. The allegations from October 2014 to March 2015 and the allegations from March 2015 to May 2015 are all part of the same continuum, are similar in nature, and are clearly related. They are also similar to, and a continuation of, the allegations in the amendments granted in the 2014 Interim Decision. In my view, the proposed amendments would form a “series of incidents” for the purposes of s.34(1)(b), and would be timely if they were included in a new application rather than a Request to amend. For this reason, I find that there is no basis to refuse the proposed amendments on the basis of delay.

Prejudice

21The respondent has also raised prejudice as a basis to refuse the amendments. The only basis for prejudice, however, is the same argument raised with respect to timeliness of the October 2014-March 2015 incidents. In my view, given that the Application will in any event address the incidents raised in the Application, and the incidents up to October 2014 added by the 2014 Interim Decision, and the incidents from March 2015 on, I do not see how it would be prejudicial to also consider the incidents from October 2014 to March 2015.

Do Allegations Raise Code Issues?

22The original Application, filed in April 2014, raised a number of allegations of harassment based on gender and disability, and that the applicant was subject to a poisoned workplace. As noted, the 2014 Interim Decision granted the applicant’s request to amend her Application to include additional allegations of reprisal, discrimination and harassment. The requested amendment was essentially a log of specific incidents at the workplace from June 22, 2014 up until October 7, 2014.

23In the 2014 Interim Decision, the Tribunal noted at paras. 6-7:

In determining requests to amend applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request, and prejudice to the respondent. See 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.

This Application was filed in April 2014. The new allegations relate to incidents said to have occurred after the Application was filed. They are also timely and could be the subject of a new Application which would likely be consolidated with this Application. The respondent offered no reason why the Application should not be amended other than to say it should be deferred because the substance of the amendments are the subject of several grievances which the applicant has filed. In all of the circumstances it is appropriate to allow the amendments requested in the October 19, 2014 Request.

24The proposed amendments are simply a continuation of the allegations already before the Tribunal. For the same reasons given in the 2014 Interim Decision, I find it is also appropriate to grant the applicant’s present Request to amend the Application.

Next Steps

25As the application was deferred, the respondent has not yet filed a Response to the amendments granted in the 2014 Interim Decision. It is also entitled to file a Response to the amendments granted in the present Decision. The Respondent will have 35 days from the date of this decision to file a Response to the amended allegations.

Order and Directions

26The Application is reactivated.

27The applicant’s request to amend her Application is granted.

28The respondent shall file a Response to the amended allegations, both those granted in the 2014 Interim Decision and those granted herein, within 35 days of the date of this Decision.

29The applicant may file a Reply within 21 days of receiving the Response to the amendments.

30I am not seized.