HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tin Trinh
Applicant
-and-
CS Wind Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Trinh v. CS Wind Canada Inc
WRITTEN SUBMISSIONS
Tin Trinh, Applicant
Zahra Binbrek, Counsel
CS Wind Canada, Respondent
Suzanne M. Porter, Counsel
Introduction
1The Tribunal has heard evidence from a number of witnesses over four hearing days.
2At the commencement of the hearing on December 20, 2016, the applicant informed the Tribunal that she had recently advised the respondent that based on the evidence presented to date, the applicant will be arguing that she was denied the opportunity to have her employment performance reviewed in 2014 and denied the bonus which would have been paid in 2015. She will also be arguing that she experienced discrimination when she did not receive the Production Improvement Process (“PIP”) in 2014.
3The applicant submitted that she should be allowed to make these arguments since she was disadvantaged by the lack of disclosure of documents by the respondent that were relevant do the respondents process for raises and bonuses until late in the hearing process. The applicant argued that this late disclosure prejudiced her by the inability to properly assess the issues involved. She submits that this claim to these benefits flows from the evidence which we now have heard and which she says supports a claim that the denial of these benefits is connected to Code protected grounds.
4The applicant submits that the respondent is only minimally prejudiced by this and that in accordance with Rule A3.1, the Tribunal’s Rules should be liberally and purposively interpreted to promote a just, fair and expeditious resolution of applications.
5In addition, the applicant highlighted the fact that in the Tribunal’s September 29, 2016 Case Assessment Direction, the parties were directed to consider whether in closing arguments, they wished to address the issue of whether the applicant experienced a breach of her Code rights in not receiving a raise or bonus during the years 2012, 2013 and 2014.
6The respondent objects to having the Tribunal allow the applicant to make this claim. The respondent submits that during the first day of hearing, the applicant stated that she was only looking for a bonus based on a lack of performance evaluation in 2012 that was paid 2013 and that because of the well-known one year rule, the respondent based its on evidence on that. The respondent alleges that the applicant specifically abandoned the claim that she was denied other raises or bonuses and that the only reason the respondent had called two witnesses to discuss their bonuses and raises was because the applicant had stated that they had informed her that they had received them. The respondent claims that it is prejudiced because it did not call witnesses to explain the one year rule or call other employees that might have been in similar circumstances of not receiving a bonus or raise.
7The respondent stated that by mentioning the Ontario Court of Appeal decision in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital, 42 O.R. (3d) 692, 1999 CanLII 3687 (ON CA), 1999 CanLII 3687, in its September 29, 2016 Case Assessment Direction, the Tribunal has opened the door to expand on remedies and the record and asks the Tribunal to not allow this.
[8] The applicant made further submissions that in her opening statement, she had stated that she was abandoning a claim to any bonus and raise for work performed in 2013 and paid in 2014. She was still claiming discrimination in denial of bonus paid out in 2013 when she was on maternity and that now, based on evidence that was just revealed in the previous two hearing days, she is advancing a claim for a remedy for loss of benefit work performed for 2014 which she says she was denied as a result of the poisoned work environment created by the respondent which forced her to leave her employment.
Analysis and Decision
9On December 20, 2016, I provided an oral decision in which I allowed the applicant to make this claim. I provided some reasons orally and indicated that I would provide these reasons more thoroughly in writing.
10In the Application, the applicant claimed that she did not receive any raises or bonuses while she was on maternity leave. She also claimed that on June 24, 2014 she spoke to the human resources manager about her wage because during her maternity leave, raises and bonuses were given out to managers.
11The Tribunal issued a Notice of Hearing advising the parties of their disclosure obligations. The respondent initially indicated that it was relying on the documents attached to its response. As the respondent had not provided witness statements and documents that appeared to be relevant to the issues in this Application, the Tribunal issued a Case Assessment Direction directing the respondent to serve and file those documents.
12The applicant made a Request for Order for the respondent to produce arguably relevant documents. Specific to this Request, were documents that related wage increases and bonuses earned in 2012 and 2013 and paid in 2013 and 2014. Attached to this Request was correspondence from the respondent in which the human resources manager had stated that there were no bonus paid in 2012 and 2013 up to November 2013 and there were no wage increases. In a letter dated January 22, 2016 the respondent advised “With respect to wage increases and/or bonuses paid to managers in 2013 and 2014, we are advised that no bonuses were paid out in 2012 and 2013. Some bonuses were paid out in 2014, however, those bonuses were paid to employees hat were actively at work and met specific performance indicators in 2013.”
13In her opening statement, the applicant stated that she was claiming she was denied bonuses and wage increases paid in 2013 when she was on maternity leave. She stated that she was not claiming for bonus and wage increase the was based on performance for work done in 2013 .
14She also provided testimony in examination-in-chief and cross-examination about her discussions with the human resources manager and emails on this topic were reviewed in evidence.
15On March 30, 2016 the applicant clarified that she was not proceeding with allegations of discrimination in not receiving the bonus earned in 2013 and paid in 2014 so for that year just claiming cost of living increase.
16The applicant also provided evidence that she had discussions with the human resources manager in early January 2015 in which he discussed wanting to look into paying her for the work she did in 2014.
17We have heard from a number of the respondent’s witnesses about the bonuses and raises they received. We have also heard about the performance review process and how bonuses and raises are determined.
18In the course of witnesses testimony the Tribunal heard that some salaried employees had received raises and bonuses earned in 2012 and 2013 and paid in 2013 and 2014.
19During the course of the hearing days in September 2016, I made a request that the respondent produce documents that would demonstrate the breakdown of the year to date totals for all categories of income received by salaried employees for the years 2012, 2013 and 2014. These were produced and the respondent was to provide evidence about these documents on December 20 and 21, 2016. Ms. Kinsmen-Jackson, the witness who is advising counsel for the respondent was present to provide testimony about these documents on December 20, 2014. She was employed at the respondent when performance reviews were completed in 2014.
204. These were produced and the respondent was to provide evidence about these documents on December 20 and 21, 2016. Ms. Kinsmen-Jackson, the witness who is advising counsel for the respondent was present to provide testimony about these documents on December 20, 2014. She was employed at the respondent when performance reviews were completed in 2014.
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; and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
22The Tribunal generally grants 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.
23I find that the respondent is not prejudiced by allowing the applicant to advance this claim for remedy. The respondent’s position and evidence on bonuses and wage increases has changes through the course of the Application process. As a result, the applicant could not have a clear understanding of the grounds for her allegations or for the potential remedies she could claim. The respondent has clearly been on notice that denial of wages and bonuses were at issue in this Application. As well, I made it clear that I wanted the parties to consider whether the applicant’s Code rights had been breached when she had not received bonuses and raises in 2012, 2013 and 2014.
24The respondent has had a fair opportunity to provide its evidence about these issues and the respondent’s witnesses have provided a great deal of evidence on its process for determining bonuses and raises.
25The respondent has been fully aware that the applicant is alleging that she experienced a poisoned work environment by the respondent which resulted in her leaving the respondent’s employment. We have heard evidence relevant to this allegation from both parties’ witnesses. If I were to find that the applicant has proven this allegation of a breach of her Code rights, the question will arise as to what remedy is appropriated to address this Code breach. What the applicant has now raised is a potential remedy for that breach.
26In making this decision I am in no way making any determination as to whether the applicant has proven any of her allegations; whether any remedies should be ordered or the appropriateness of the remedies sought. I make this decision without prejudice to any position the respondent may wish to take regarding these issues.
Dated at Toronto, this 21^st^ day of December, 2016.
“Signed By”
__________________________________
Laurie Letheren
Vice-chair