Konesavarathan v. Middlesex London Health Unit, 2016 HRTO 86

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

Middlesex London Health Unit

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: January 20, 2016

Citation: 2016 HRTO 86

Indexed as: Konesavarathan v. Middlesex London Health Unit

WRITTEN SUBMISSIONS

Kovarthanan Konesavarathan, Applicant

Self-represented

Middlesex London Health Unit, Respondent

Jodi Gallagher Healy, Counsel

Western University, Proposed Respondent

Erin McDermid, Counsel

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of disability, race, colour, place of origin, ethnic origin and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The hearing in this matter is set for March 7 and 8, 2016.

2The applicant seeks to add Western University (“the university”) as a respondent. The respondent (“health unit”) and the university object to the request.

Add Respondent

3Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party.

4In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out at paragraph 12 the factors to consider when deciding whether to add a respondent, as follows:

a. Are there allegations made that could support a finding that the proposed respondent violated the Code?

b. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

c. Would it be fair, in all the circumstances, to add the proposed respondent?

5The Application alleges the health unit discriminated against him by not extending his practicum placement after he was not able to attend his placement for two weeks because of dental surgery. He further alleges the health unit subsequently reprised against him for asserting his right to be accommodated, and discriminated against him on the basis of his sex as well as his race, ethnic origin, colour and place of origin by not hiring him.

6The applicant seeks to add the university as a respondent because he alleges it was a party to the practicum agreement through which the applicant had a practicum placement at the respondent, Middlesex London Health Unit (“health unit”), and it took part in the decision not to extend his practicum after his short-term medical leave for dental surgery. His practicum placement was for 8 weeks, rather than the expected 10 weeks. He further alleges the university should be a party because some documents relevant to this matter are in its possession.

7The health unit objects to the university being added as a party, disputing the applicant’s allegation that the health unit claims it was the university that made the decision not to extend the applicant’s practicum. The health unit states it made the decision, not the university.

8The health unit further submits the applicant’s other allegations with respect to the health unit’s working environment, and its failure to hire him, do not involve the university.

9The health unit further submits that it is not necessary or appropriate to add the university as a respondent because it may have relevant documents in its possession. Finally, it submits the applicant’s request to add the university should be denied because it is an attempt to broaden the scope of the Application.

10The university submits the applicant’s request to add it as a party should be denied for the following reasons:

a. The applicant’s request is untimely.

b. The applicant has not alleged any facts that could support a finding that the university violated the applicant’s Code rights because:

i. The applicant alleges discrimination in employment and the university was not the applicant’s employer;

ii. The university did not make the decision to end the applicant’s practicum early;

iii. The university did not make the decision, nor was it involved in the decision, with respect to the projects the applicant was expected to complete before the end of his practicum; and

iv. The university was not involved in the health unit’s hiring decisions.

c. Adding the university would cause substantial prejudice to its ability to make full answer and defence.

11The applicant filed what appeared to be reply submissions related to this Request for an Order During Proceedings. He did so in his Form 11 Response to a Request for an Order During Proceeding filed in response to a separate Form 10 Request for an Order During Proceedings filed by the health unit. The university asked that the Tribunal disregard these submissions.

12While there is no right of reply to a Form 11 Response to a Request for an Order During Proceedings (“Form 11”), because of the university’s position that the applicant’s request is untimely, to which the applicant responded in these submissions, I have considered the applicant’s additional submissions.

13The applicant alleges the university did not intervene when the applicant complained about the health unit’s alleged discrimination against him; intervened in his request for accommodation for his medical disability; took away the applicant’s rights to pursue accommodation; and suggested or hinted to the health unit that it was not required to provide the applicant with accommodation. The applicant further alleges the “recruitment related issues are the consequences or negative outcomes of not addressing the discrimination and reprisal/harassment”.

Analysis and Decision - Adding Respondent

14First, I note that the applicant’s July 17, 2015 request to add the university as a respondent includes broad allegations about the university’s alleged treatment of the applicant during his education, which in my view do not relate to the allegations in this Application. They also appear to be untimely. It appears the applicant is attempting to raise new allegations that arose more than a year before the applicant’s request to add the university was filed. The effect of allowing this would be to circumvent the time limits set out in s. 34(1) of the Code. See, for example: Sookdeo v. Toronto District School Board, 2016 HRTO 33.

15On that basis, the request in relation to the broad allegations against the university is denied. I would come to the same conclusion based on a consideration of the factors set out in Smyth, above, as it would not be fair to add the university as a respondent at this juncture.

16Specifically with respect to the applicant’s request to add the university as a party because of its alleged involvement in the decision not to extend the practicum placement, which the applicant alleges subsequently had an effect on his potential employment, the health unit states it made this decision, not the university. This is supported by the university’s e-mail of July 14, 2014, in which it confirms with various parties, including the applicant, that it and the applicant have had a discussion and will accept as final the health unit’s decision on whether or not to extend the practicum placement.

17In addition, some of the applicant’s allegations against the university are with respect to hiring decisions made by the health unit. Based on the Smyth factors, it would not be fair to add the university and there are no allegations made that could support a finding that the university violated the Code. There are no grounds to add this respondent.

18The applicant argues that the university should be a party because it has documents relevant to the determination of this matter. The fact that some documents may be in the possession of a third party is not determinative of whether that party should be a respondent.

Applicant’s Request for Production, Amendment and Referral to the Commission

19The applicant requested “production of numerical data on enumerated grounds under the Code”, specifically with respect to gender, disability and race. The applicant appears to be seeking documentation showing the number of respondent’s employees who have a disability, are non-Caucasian, or are male versus female. The respondent states it does not collect such data.

20The applicant also requested he be permitted to amend his Application to include an additional non-monetary remedy.

21Finally, he asks that this Application be referred to the Human Rights Commission.

Document Production

22The respondent advises it does not keep statistics such as those the applicant seeks. The test for disclosure of documentation is arguable relevance, which is not a particularly high threshold (see Lampi v. Princess House Products Canada Inc., 2008 HRTO 1 at para. 8). While the information being requested by the applicant is arguably relevant to the issues in this hearing, the respondent would be required to create new documents to comply with the request, and I am not prepared to order the respondent to create new statistical documents for the hearing. See: Wales v. Toyota Motor Manufacturing Canada Inc., 2012 HRTO 2104 at para. 8.

Amendment re: Remedy

23The applicant seeks to amend his Application to include an additional non-monetary remedy, namely that the respondent be compelled to collect statistical data based on enumerated grounds in the Code in the future.

24In 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, 2010 HRTO 407.

25Having considered the factors set out above, I grant the applicant’s request to amend the remedy sought in his Application. 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.

26The amendment is permitted without any determination by the Tribunal as to the appropriateness of the remedy sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Referral to Commission

27Section 45.4(1) of the Code states:

The Tribunal may refer any matters arising out of a proceeding before it to the Commission if, in the Tribunal’s opinion, they are matters of public interest or are otherwise of interest to the Commission.

28In the Tribunal’s view there is no reason to refer this Application to the Commission, and the applicant’s request is denied.

Adjournment Request

29The applicant requests that the hearing in this matter be adjourned. The respondent opposes that request.

30The Tribunal’s Confirmation of Hearing Notice states that requests for adjournments will be dealt with according to the Tribunal’s Practice Direction on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. This Practice Direction provides that requests to reschedule must be made within 14 days of receiving the Notice of Confirmation of Hearing and that the parties need to confer and provide the Tribunal with alternative dates if a rescheduling is being requested. The Practice Direction also states that The Tribunal discourages requests for adjournments outside this 14-day period noting that later requests for adjournment, particularly ones at the last minute, are a significant impediment to fair and timely access to justice. Consequently, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent. The Practice Direction also states that where a party seeks to adjourn a scheduled hearing, they must contact the other parties to seek their consent, and to discuss alternative dates for the rescheduling of the hearing.

31There are no extraordinary or exceptional circumstances in this case to warrant an adjournment, and the applicant’s request is denied.

ORDER

32The Tribunal makes the following orders:

a. The applicant’s request to add the university as a respondent is denied.

b. The applicant’s request for production of documents is denied.

c. The applicant’s request to amend his Application to include an additional non-monetary remedy is granted.

d. The applicant’s request for the Tribunal to refer this matter to the Commission is denied.

e. The applicant’s request to adjourn this hearing is denied.

Next Steps

33The respondent need not file an amended Response with respect to the applicant’s request for an additional non-monetary remedy.

34While the Notice of Hearing required the filing of the parties’ documents to be relied on at the hearing by January 22, 2016, this deadline is extended to January 29, 2016 to allow the parties some additional time.

35I note that since drafting this Interim Decision, the applicant has filed another Form 10 Request for an Order During Proceedings. This, and any other request, can be dealt with at the outset of the hearing.

36I am not seized of this matter.