Wahida Kurji v. Chaim Goldberg, 2016 HRTO 163

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wahida Kurji

Applicant

-and-

Chaim Goldberg

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: February 4, 2016

Citation: 2016 HRTO 163

Indexed as: Kurji v. Goldberg

APPEARANCES

Wahida Kurji, Applicant

Kevin Sambrano, Paralegal

Chaim Goldberg, Respondent

Sheryl Johnson, Counsel

Introduction

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

2The applicant filed an Application on January 29, 2015 in which she alleged that the respondent discriminated against her on the basis of her disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code). In question 8 of the Application where an applicant is to describe the events that she believes are discriminatory, the applicant alleges that at the end of the March 11, 2014 workday, the day she returned to work after surgery, the respondent informed her that he was terminating her employment. She also describes a conversation that she and the respondent had about a Blue Cross bill.

3The respondent filed a Response on April 17, 2015 in which he denied the allegations in the Application. The Response provided the respondent’s position on the applicant’s termination and some of the alleged circumstances that lead to the decision to terminate her employment. In the Response, the respondent made a request to dismiss the Application on the basis that it had no reasonable prospect of success submitting that the applicant had not alleged any facts that could connect the termination to her disability.

4On April 8, 2015, the respondent advised the applicant and the Tribunal that while gathering evidence in preparation for the hearing, he discovered that some errors in assumptions about the issuance of the applicant’s Record of Employment had been made. The respondent asked to amend the Response, Requests for Orders During Proceedings and the Request for Summary Hearing to include these new facts and documents.

5On May 14, 2015, the Tribunal advised the parties that the respondent’s request for summary hearing was denied.

6On May 1, 2015, the applicant filed a Reply. She provided a few more details on the circumstances surrounding her termination on March 11, 2014; however she did not raise any further alleged incidents of discrimination other than the termination of her employment.

7A hearing of the Application was scheduled for November 12 and 13, 2015. The Notice of Hearing directed the parties to serve on each other and file with the Tribunal all of the documents that they intend to rely on for the hearing and witness statements by September 28, 2015.

8On October 12, 2015, the applicant served and filed her documents and witness statements. On that same day she also filed a Request for an Order During Proceedings (Request) to amend her Application.

9Through the Request, she sought to make three amendments: add the ground of reprisal; amend Section 8 of the original Application “to provide a more detailed and more specific explanation of the allegations”; and adjust damages sought.

10The November 12, 2015 hearing date was converted to a preliminary hearing to address the Requests for Orders to amend the Application and Response.

Amendments to Section 8

11The proposed amendments to Section 8 of the Application are quite extensive. They are more than “a more detailed and more specific explanation of the allegations”. The proposed amendments include a number of new incidents of alleged discrimination that date back to January 2012. They raise new allegations of discrimination on the basis of disability and are framed as an alleged failure to accommodate the applicant’s disabilities over a number of different years and different medical conditions. The proposed amendments also raise allegations of discriminatory treatment during the period of time that the applicant was preparing to take a medical leave in 2014 and while she was on medical leave in 2014. In addition the proposed amendments provide more details about the events of March 11, 2014, the day she returned to work after her two-month absence and was terminated.

12The applicant submits that the proposed amendments expand upon the facts of the original Application which is lacking in detail and may serve to prejudice the applicant. The applicant submits that she had no representation when she filed the Application which is why she did not provide include these details previously. She claims that that she should not be prejudiced by the fact that she did not have representation earlier.

13The applicant submits that the respondent would not be prejudiced if the Tribunal were to allow these amendments as they are of the same subject matter as the allegations that were detailed in the original Application so the impact on the respondent will be minimal. The applicant also submits that the respondent would not be prejudiced because the Request was brought one month prior to the date of the hearing on the merits.

14The applicant further submits that the Tribunal has the jurisdiction to allow these amendments. The incidents detailed in the proposed amendments are part of a series of incidents of discrimination by the respondent in failing to accommodate the applicant’s disability and reprisal and that the series of incidents ended when the applicant was terminated by the respondent.

15The respondent objects to the Request. The respondent submits that it made a request for summary hearing based on the fact that it thought that the Application lacked details on how the termination was connected to her disability. The respondent submits that the applicant could have taken opportunity to detail these further allegations in response the request for Summary Hearing. In the response to the request for Summary Hearing and her Reply, the applicant only addressed the allegations about the termination. She never raised any other allegations until she filed her witness statement and this Request.

16The respondent argued that the Tribunal did not order a Summary Hearing and the Application proceeded on the sole allegation that the applicant’s termination by the respondent was discrimination on the basis of her disability.

17The respondent submits that the applicant is trying to change the nature of the Application on the eve of the hearing after all pleadings and hearing preparations have been completed and that he would experience prejudice it the nature of the Application were changed at this point.

18The respondent submits that the fact that applicant was unrepresented at time of filing the Application is not a reason to allow the amendments especially when allowing these amendments would significantly and overwhelming alter the original Application on the eve of the hearing.

19The respondent submits that the allegations in the proposed amendments cannot be seen as a series of events as the events alleged are not connected to one another and are not connected to the event that was alleged in the Application. The applicant has not provided any evidence to demonstrate that the delay was incurred in good faith.

20The respondent submits that he will experience prejudice if the Tribunal allows the Request to amend. The new allegations go far beyond just providing further details about the allegations that were made in the Application and cover alleged incidents that occurred in 2012. At this point, it will be hard to retrieve this evidence that would be needed to make full answer.

ANALYSIS

21In 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 .

22Section 34(1) of the Code imposes a one year period from the date of the last alleged incident of discrimination to file an application to this Tribunal. While s. 34(1) applies only to when a person may apply to the Tribunal, and not to when an applicant can seek an amendment, s. 34(1) does set out the expectation that an applicant will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced in allowing amendments: see Khokher v. Intercon Security Limited, 2011 HRTO 1493 and Anderson v. Stieber Berlach LLP, 2012 HRTO 1471.

23In this case, the incidents detailed in Schedule A attached to the Request occurred from between four years to 19 months prior to the date when the applicant filed the Request. I find the incidents alleged in the proposed amendments cannot be considered to be a series of incidents that end with the termination. They are of a different nature from the allegation contained in the original Application. There are numerous Tribunal decision that dismiss allegations made in Applications if these alleged incidents of discrimination occurred more than a year prior to the date of filing the Application. See: Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241 and Murray v. G4S Secure Solutions (Canada) Ltd., 2015 HRTO 940. To allow the applicant to include out of time allegations through this Request would circumvent the purpose of section 34 and would be inconsistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with in a fair, just and expeditious manner.

24As well, to allow the applicant to include these incidents would significantly expand the scope of these proceedings. I accept the respondent’s assertion that if the Tribunal were to allow the amendments he would be required to file a revised Response. In order to properly respond to each of the new allegations, he would be required to locate additional documentation and interview witnesses who may no longer accurately recall events alleged. As a result, he would be prejudiced in his ability to properly prepare a response to the new allegations at this time.

25The applicant’s only explanation for why she filed this Request so late is that she did not have legal representation previously. The Tribunal has found that due to the fact that parties do have access to resources and supports to assist them with the Tribunal process, the fact that a party is self-represented is not a sufficient explanation for delay is raising allegations of discrimination: See Ibrahim v. Hilton Toronto, 2012 HRTO 740.

26For these reasons, the Request to amend the Application to add these allegations is denied.

Amendments to Include Ground of Reprisal

27As I am not allowing the applicant to amend the Application to include the new allegations, the only alleged incident of discrimination will be the termination on March 11, 2014. There are no facts alleged in the Application that could reasonably support a finding of reprisal under section 8 of the Code.

28The applicant’s Request to add the ground of reprisal is therefore denied.

Request to Amend Remedies Claimed

29In the Application filed on January 29, 2015 the applicant itemized her claim for monetary remedy as:

• Misrepresentation: $50 000
• Punitive, aggravated and bad faith: $50 000
• Emotional and mental distress: $50 000
• Slander: $ 1 000 000
• Failure to issue Record of Employment stress: $50 000

30The applicant is requesting to amend the remedy claim to be allowed to not claim:

Monetary remedies

Total amount $165,320.00

• Injury to dignity, feelings and self-respect. $50,000.00
• Loss income in the amount of $113,320.00 (ongoing)
• Annual bonuses in the amount of $2,000.00
• Retroactive payments to the Canada Pension Plan;
• Reimbursement for out-of-pocket medical and dental

Non-monetary remedies

• Mandatory Human Rights Training for the respondent
• The respondent to develop a human rights policy
• Letter of apology to Ms. Kurji
• Provide a letter of reference to Ms. Kurji

31The applicant’s request to amend the remedies sought in her Application is granted. I find that although this request is made at a very late stage of the Application, the respondent will not be prejudiced by the amendment. The Tribunal has regularly granted requests to amend remedies 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. I also note that it is open to the Tribunal, on its own initiative, to seek the submissions of the parties on the appropriate remedy at any time, in the event that a violation of the Code is found.

32This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Respondent’s Request to Amend Response

33In a letter dated April 18, 2015, the respondent clarified the timing and events around the issuing of the Record of Employment to the applicant. The respondent indicated that while preparing documents for the hearing, it was discovered that the Record of Employment had not been provided to the applicant in a timely manner which is different from what had been stated in his Response. The respondent is therefore requesting that the facts contained in the April 18, 2015 letter and the documents attached to the letter be made part of the Response. The Applicant agreed to these amendments.

34The respondent’s request to amend the Response to include the facts contained in the April 8, 2015 letter and documents attached to that letter is allowed.

ORDER

35For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend section 8 of the Application is denied.

b. The applicant’s request to amend the Application to add the ground of reprisal is denied.

c. The applicant’s request to amend the remedies section of the Application is granted.

d. The respondent’s request to amend the Response to include the facts contained in the April 8, 2015 letter and documents attached to that letter is granted.

36I am not seized.