HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Iliana Tanova
Applicant
-and-
Liquor Control Board of Ontario, Diane Beausoleil and Carol Lyons
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard Date: April 14, 2016 Citation: 2016 HRTO 485 Indexed as: Tanova v. Liquor Control Board of Ontario
Introduction
1This Interim Decision relates to two Applications filed by the applicant. The first was filed on January 21, 2015 against the Liquor Control Board of Ontario (“LCBO”) and Diane Beausoleil. The second was filed on December 17, 2015 against the LCBO and Carol Lyons.
2On February 5, 2016, the applicant filed a Request for Order During Proceedings requesting to amend the January 21, 2015 Application (the “Original Application”) and requesting the production of documents.
3On February 10, 2016, the Tribunal consolidated the Applications.
4On February 18, 2015, the respondents filed a Response to the request to amend.
5This Interim Decision addresses the request to amend, the request for production of documents and procedural matters.
Decision and analysis
Request to Amend
6The hearing in respect to the Applications is scheduled for July 8, 2016 in Toronto.
7The applicant seeks to amend the Original Application to add the following grounds of discrimination:
a. place of origin; and
b. pregnancy.
8The applicant alleges that her two internal workplace complaints filed with the corporate respondent, which the corporate respondent investigated internally, included allegations of discrimination because of place of origin and pregnancy. The applicant maintains that she had included the allegations of discrimination based on place of origin and pregnancy in the written instructions to her legal counsel but counsel failed to include them in the Original Application. The applicant also maintains that there are parts of the Response and Reply that touch on discrimination based on place of origin and, as such, she is not alleging a new ground of discrimination.
9The applicant proposes to amend the Original Application to set clearer timelines and to clarify and particularize her claims by presenting further examples and instances of discrimination. The applicant argues that the amendments do not raise new facts distinct from the Original Application but simply adds to the context of the allegations. Finally, the applicant seeks to amend her Application to add a list of new remedies sought. The applicant filed an amended Application with her request to amend (“Amended Application”).
10The respondents oppose some of the requested amendments. They maintain that the Original Application focuses on allegations of discrimination based on disability, the failure to accommodate that disability and reprisal flowing from same. Except for the allegations in support of discrimination based on pregnancy as described below, the respondents do not object to the addition of the remaining amendments in the Amended Application.
11With respect to the issue of discrimination based on pregnancy, it is the respondents’ position that the Amended Application includes facts that were not included in the Original Application. In addition, the respondents argue that a number of the applicant’s proposed amendments are untimely and fail to state a prima facie case of discrimination under the Code. The respondents submit that paragraphs 5.3 to 5.21 of the Amended Application and all other allegations, as listed below, in support of discrimination based on pregnancy should be dismissed.
12Rule 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.
13In deciding requests to amend 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 respondents. See, for example, 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.
14In considering these factors, I dismiss the request to add the allegations of discrimination based on pregnancy. I find that the Original Application was based on allegations of discrimination based on disability, the failure to accommodate the disability and reprisal resulting from this. The Application does not mention “pregnancy” or raise any facts in relation to pregnancy and does not allege discrimination based on the ground of sex.
15The applicant explains that she did not include discrimination based on sex in the Original Application because she was represented by legal counsel at the time and counsel did not follow her written instructions. However, the applicant does not explain why she failed to ensure that the allegations were included at the time the Original Application was filed in the months following.
16I concur with the respondents that the allegations of discrimination based on sex are completely distinct from allegations of discrimination in the failure to accommodate in relation to the applicant’s disability. The hearing in this matter is scheduled for July 8, 2016, less than four months away, and I find that the respondents would be unduly prejudiced by the addition of entirely new allegations of discrimination.
17The respondents do not object to the applicant’s remaining proposed amendments, including the proposed amendments related to discrimination based on place of origin. They maintain that the Original Application contains the essential facts upon which the applicant bases her claim of discrimination based on place of origin. Acccordingly, the remaining proposed amendemnts in the Amended Application are allowed.
Request for production of documents
18The applicant requests that the respondents provide copies of the corporate respondent’s internal investigation reports produced as a result of the workplace investigations in the applicant’s complaints of harassment and discrimination. The applicant alleges that she has received unsigned summaries of the reports, and she requires the full reports to address issues related to whether the applicant’s complaints were adequately addressed by the organizational respondent. The applicant alleges that she made a verbal request for the reports but the respondents indicated that they are confidential.
19Rule 16.1 of the Rules of Procedure provides that, not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party a list of all arguably relevant documents in their possession. Where a privilege is claimed, the party must describe the nature of the document and the reason for making the claim. The Tribunal sent a Confirmation of Hearing to the parties directing them to disclose arguably relevant documents to each other by January 21, 2016. The respondents are ordered to comply with Rule 16.1.
ORDER
20The Tribunal orders as follows:
a. The request to amend the Application by adding the last phrase of paragraph 5.1, and paragraphs 5.3 to 5.21, 5.26 and 5.27 of the Amended Application, is dismissed.
b. With the exception of the paragraphs listed in paragraph 18(a) above, the request to substitute the Amended Application for the Application is granted.
c. The respondents may file an amended Response to respond to the amendment to the Application within 35 days from the date of this Interim Decision. If the applicant wishes to file a Reply to any amended Response, she must do so within 14 days of receiving a Response or an Amended Response from the respondents.
d. The respondents will comply with Rule 16.1 of the Rules of Procedure.
21The parties will be offered mediation-adjudication at the hearing, in accordance with the Rule 15A of the Rules of Procedure.
Dated at Toronto, this 14th day of April, 2016.
“Signed By”
Josée Bouchard
Vice-chair