David Belcastro v. Metrolinx, 2016 HRTO 843

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Belcastro Applicant

-and-

Metrolinx Respondent

-and-

Amalgamated Transit Union, Local 1587 Intervenor

INTERIM DECISION

Adjudicator: Sheri Price Date: June 22, 2016 Citation: 2016 HRTO 843 Indexed as: Belcastro v. Metrolinx

WRITTEN SUBMISSIONS

David Belcastro, Applicant Angelo Sciacca, Counsel

Metrolinx, Respondent Daniel Fogel, Counsel

1This Interim Decision addresses the applicant’s Request to amend the Application to include certain allegations. The Application is scheduled to be heard in Toronto on July 12 and 13, 2016.

Background

2The applicant, who is employed by the respondent, went off work due to disability in March 2010. He applied for benefits from the Workplace Safety and Insurance Board (“WSIB”) on the basis that his injuries were work-related. However, the WSIB denied the claim and the applicant appealed to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In the meantime, the respondent pleads, and I do not think there is any dispute that, the applicant went on paid sick leave for an initial six-month period, after which the applicant applied for and received Long Term Disability benefits from an insurer.

3By decision dated July 11, 2013, the WSIAT found that the applicant’s injury was work-related and allowed the applicant’s claim for WSIB benefits, retroactive to March 2010.

4By the time of the WSIAT decision, the applicant was enrolled in a full-time two-year retraining program at a College, which was scheduled to be completed in May 2014. The applicant pleads that he sought and obtained permission from the WSIB and the respondent employer to finish his College program before returning to work with the respondent.

5In April 2015, the applicant filed an Application with the Tribunal alleging that the respondent employer discriminated against him because of disability by failing to provide him with work within his disability-related restrictions following the WSIAT’s July 2013 decision. In particular, the applicant alleges that from May 30, 2014 onwards, he applied for at least 10 different jobs with the respondent employer, but was not placed in any of the positions he applied for. The applicant further alleges that the respondent improperly failed to place him in a “stockhandler” position in or around January 2015 and a “Buyer, Fleet & Facilities Services” position in or around April 2015.

6In June 2015, the applicant made a Request to amend his Application. The respondent, which had not filed a Response to the Application by that point, consented to the Request and the Request was granted: 2016 HRTO 79.

7The respondent filed its Response to the amended Application in June 2015, denying the allegations against it.

8In August 2015, the Tribunal issued a Notice of Hearing indicating that the Application would be heard in May 2016. (In March 2016, the hearing was adjourned to July 2016, on consent: 2016 HRTO 387.)

9In September 2015, the parties were required to exchange their arguably relevant documents with one another, pursuant to the Tribunal’s Rules of Procedure.

10In January 2016, the applicant filed a further Request to amend the Application to include the allegation that the respondent discriminated against him by failing to give him one of “multiple” jobs that he allegedly applied for between 2011 and 2013. The applicant also seeks to amend his Application to include the allegation that, in July 2015, a couple of months after he filed his Application, the respondent accommodated him in a “wayfinder” position at Union Station. The applicant alleges that such work was available for the five years prior to the applicant being placed in the wayfinder position. However, the applicant pleads that he did not know that the wayfinder work was available prior to his starting in such role in July 2015.

11The respondent consents to the applicant’s Request to amend his Application to include the allegation that he was placed in the wayfinder job in July 2015. However, it objects to the applicant’s Request to amend the Application to include the allegation that the respondent failed to accommodate him during the 2011 to 2013 time frame. It also objects to the applicant’s ability to pursue an allegation that the respondent discriminated against the applicant by not placing him in the wayfinder job prior to July 2015.

Analysis and decision

12Pursuant to Rule 1.7(c) of the Tribunal’s Rules of Procedure, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal has the discretion to allow any filing to be amended. In considering requests to amend, the Tribunal generally considers the nature of the proposed amendment, the reasons for the request to amend, the timing of the request and whether there is any prejudice to the respondent: 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.

13As noted above, the respondent consents to the applicant amending his Application to include the allegation that he was placed in a wayfinder position with the respondent in July 2015. This aspect of the Request is granted accordingly.

14However, having considered the parties’ submissions, I am not persuaded that the applicant ought to be permitted to amend his Application to include an allegation that the respondent failed to accommodate him during the time period from 2011 to 2013.

15In my view, permitting the applicant to amend his Application to include the allegation that there were “multiple” jobs in which he could have and/or should have been accommodated from 2011 to 2013 would substantially alter the nature of the case against the respondent and significantly expand the scope of the hearing.

16In addition, while the Tribunal will often permit amendments that relate to and/or clarify the allegations contained in the original Application, the allegation that the respondent failed to accommodate the applicant between 2011 and 2013 is really a new allegation altogether. As noted above, the allegation in the Application is that the respondent improperly failed to provide the applicant with work within his restrictions after the WSIAT’s July 11, 2013 decision was issued, with particular focus on the time period from May 30, 2014 onwards. There is no allegation in the Application that the respondent improperly refused to return the applicant to work prior to July 2013. Indeed, as noted above, the applicant pleads that, after the WSIAT’s July 2013 decision was issued, he asked that he not be required to return to work until after completion of his College program in May 2014.

17The timing of the applicant’s Request is also a factor in my decision not to permit this amendment. If the applicant believed that the respondent had discriminated against him by not awarding him position(s) he had applied for during the 2011 to 2013 time frame, I do not see why he could have included such allegation in his Application when he filed it in April 2015 or, alternatively, in his June 2015 Request to amend. Nor has the applicant provided a reasonable explanation for his failure to seek such an amendment in a more timely manner.

18For these reasons, I find that it would not be fair, just and expeditious to permit the applicant to amend his Application to include the allegation that the respondent discriminated against him by failing to provide him with work within his restrictions during the 2011 to 2013 time frame.

19To clarify, however, this does not necessarily mean that the applicant (or the respondent) is precluded from calling any evidence about what transpired during the 2011 to 2013 time frame. Evidence regarding the events of 2011 to 2013 may be relevant to the issues that are properly before me in this case, and if so, it may be admitted at the hearing, subject to any objections that may be raised. Such issues will be addressed at the hearing if and when they arise.

20Finally, I turn to the applicant’s Request to amend his Application to include the allegation that the wayfinder work he was assigned in July 2015 was available for five years prior to that time and ought to have been made available to the applicant earlier than it was.

21To the extent that the applicant is attempting to expand the scope of his Application to include an allegation that the respondent failed to accommodate him prior to the WSIAT’s July 2013 decision, the Request is denied. Again, in the context of an Application alleging that the respondent failed to accommodate the applicant after he sought to return to work in May 2014, it would substantially alter the nature of the case to permit the applicant to argue that the respondent failed to accommodate him as far back as 2010 (i.e. five years prior to July 2015).

22That said, I am satisfied that it is fair, just and expeditious to permit the applicant to pursue the allegation that wayfinder work was available prior to July 2015 as a further particular of his claim that the respondent failed to accommodate him in the workplace from May 30, 2014 onwards, particularly in light of the applicant’s allegation that he did not become aware of this until after the Application and his initial Request to amend the Application had already been filed.

23As noted above, the Tribunal will often permit an applicant to amend an Application to include further particulars of an allegation that is already contained in the original Application, because such amendments do not tend to significantly change the nature of the case or the scope of the hearing. In this case, I am satisfied that permitting the applicant to amend his Application in the limited way identified herein would not significantly alter the nature or scope of the case the respondent has to meet. Moreover, although the respondent makes a compelling case that it would be prejudiced if the applicant were permitted to pursue allegations dating back several years, there is no basis to find that the respondent would be prejudiced in its ability to respond to this amendment, given that it relates to the same time period that is already covered by the case.

24As for the respondent’s argument on delay, I am not persuaded that this is a basis upon which to deny this particular amendment. As noted above, the applicant alleges that the respondent failed to accommodate him from May 2014 to July 2015. Insofar as the allegation that the respondent could have accommodated the applicant by assigning him wayfinder work was raised within one year of July 2015 (i.e. in January 2016), it cannot be regarded as untimely.

Orders/directions

25In sum, the Tribunal orders and/or directs as follows:

1. The applicant’s Request to amend his Application to include the allegation that he was provided with “wayfinder” work at Union Station in July 2015 is allowed on consent.

2. The applicant is also permitted to amend his Application to pursue the allegation that wayfinder work was available prior to July 2015 as a further particular of his claim that the respondent failed to accommodate the applicant in the workplace from May 30, 2014 onwards. Any issues arising with respect to the respondent’s response to this allegation will be addressed at the upcoming hearing.

3. In all other respects, the applicant’s Request to amend the Application is denied.