HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary Montoya
Applicant
-and-
PepsiCo Foods Canada
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Montoya v. PepsiCo Foods Canada
APPEARANCES
Mary Luz Montoya, Applicant
Self-represented
PepsiCo Foods Canada, Respondent
Katherine M. Pollock, Counsel
Introduction
1This Application, filed February 1, 2016, alleges discrimination with respect to employment because of race contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant makes allegations dating from 2007 and the respondent filed a Request for an Order During Proceeding (“RFOP”), requesting that many of the allegations in the Application be dismissed as untimely. Additionally, as the applicant had originally named two individual respondents who are employees of the corporate respondent PepsiCo Foods Canada, the respondent accepted any liability which may be found in respect of allegations regarding those individuals and requested that those individuals be removed as parties to the Application. Further, the applicant had originally included details of interactions with employees of the corporate respondent’s American parent company, PepsiCo, Inc, and the corporate respondent submitted that the only claims properly before the Tribunal are ones which arise out of her employment in Ontario, by PepsiCo Foods Canada. Finally, the corporate respondent requested that the Application be dismissed by way of summary hearing.
3The applicant responded to the RFOP, consenting to the removal of the individual respondents as parties to this Application. The individual respondents are removed as parties and the Title of Proceedings is amended accordingly. The applicant also confirmed that the only claims she seeks to pursue by this Application are claims arising out of her employment in Ontario by PepsiCo Foods Canada.
4The applicant subsequently filed an RFOP on January 5, 2017, seeking to amend her Application so as to add an allegation of reprisal, dating after the filing of the Application. While the respondent objected to the timing of the request to amend, it indicated that if the Tribunal allowed the request, it sought the opportunity to file an amended Response, and to have adequate time for hearing preparation and disclosure.
5On February 10, 2017, the applicant filed another RFOP, requesting to make another amendment to her Application, adding another allegation of reprisal. The respondent objected to this requested amendment also.
6A case management telephone conference took place regarding the March 6, 2017 hearing date. At the March 6, 2017 hearing date, the parties engaged in mediation/adjudication, but were ultimately unsuccessful in reaching a resolution of the Application. The parties were then given the opportunity to provide submissions regarding the issue of delay. Also at that time, the applicant was given the opportunity to indicate dates and any other particulars she could for her allegations which she describes as a “series of incidents”. Where she was able to provide further information regarding her allegations, it is noted below.
7This Interim Decision addresses whether any of the applicant’s allegations should be dismissed on the grounds of delay, whether the applicant’s requests to amend the application should be allowed and the respondent’s request for a summary hearing.
ALLEGATIONS
8At the time of filing her Application, the applicant was employed by the respondent. She identifies as Hispanic. Prior to 2010, she was working as a supervisor and off-shift front line leader at a factory producing items for the Quaker division of the respondent, and she was classified at a “level 7”. She alleges that since 2007, she has made it clear to the respondent that she wanted to work in marketing. In September 2010, subsequent to corporate restructuring and the layoff of approximately 100 people, and it would appear the elimination of her position, she was transferred to a position where she was to work as an administrative assistant and in a “Quaker marketing coordinator role”. Her classification in this new position was “level 4” and her salary was reduced. She alleges that when other employees were transferred to new roles at this time, they were transferred to positions classified at “level 6”. The applicant alleges that her predecessor in the administrative assistant role had earned more than she did.
9The applicant also alleges that she complained that she was overworked in this dual position. She alleges that she complained to management at the respondent that her workload was too heavy and that she told her manager Ms. Matheson and another manager that the role should be “split”. She also states that in 2012 she played a role in planning a Latin American speaker series, and that she co-founded a group for Latin American employees. She alleges that her manager Ms. Matheson did not acknowledge her work in this regard. She alleges that with the two roles she was already performing, this meant she had a great deal of work to do. She alleges that her manager, Ms. Matheson, was very demanding, and if she wanted to get her work done she often had to take work home to complete it.
10She alleges that since 2007, she has presented ideas for innovative initiatives to the respondent, but they have all been rejected. She alleges, for example, that before 2010, she presented an idea to develop a drink, but that she was turned down. She alleges that in 2013, the respondent began to market breakfast “shakes”, which she alleges is a similar item, and it was a success.
11She alleges that in 2011, she wanted to start up a group for Latin American employees, but was advised that the respondent chose not to spend the money to develop and support such a group. She alleges that in 2012, she received no support from the respondent for a group for Hispanic employees or recognition for the work she did in respect of setting up such a group.
12She alleges that when she first applied to do an MBA and asked Ms. Matheson and Mr. Moncour, the vice-president for Human Resources, for a letter of reference in 2013, they provided them to her late, despite her having given them one month notice, and as a result she applied for the program late and was not accepted. She alleges that when she re-applied the following year to do an MBA, she asked other people for references as she could not rely on Ms. Matheson and Mr. Moncour.
13The duties associated with her position were eventually divided among four positions in May, 2014, and she continued to perform one of the four positions. The applicant alleges that in May 2014 when a white co-worker began to work performing part of her old role, the co-worker complained that she was overworked and management at the respondent acted immediately and reduced the co-worker’s workload. She states that the white co-worker was new to the company and was out-spoken. She states that she felt discriminated against as nothing had been done when she asked.
14The applicant alleges that in 2014, when she gave the respondent a proprosal she had developed as an assignment for her MBA program, regarding how to improve “onboarding”, her manager was not receptive to her suggestions. In her submissions at the hearing, she indicated that this was in June 2014.
15She alleges that when she asked about transferring to the United States and wanted to discuss an employee who had done so, Ms. Matheson told her “Mary, you are different”. She states that the other employee is white and that Ms. Matheson’s comment was discriminatory. In her oral submissions, she stated that this comment was made in June, 2014.
16She alleges that she was part of a project, but that in 2014, her manager Ms. Matheson excluded her from “recognition” that the project team received. In her oral submissions, she indicated that this occurred in June 2014.
17She alleges that she asked to participate in an “Innovation Summit”, at an unspecified date in 2014, but was only given the job of arranging the venue and the meals. She sees this as an example of how her manager Ms. Matheson has blocked her progress.
18She alleges that though her performance reviews included positive comments about her work, the scores she received in her performance reviews in 2011, 2012, 2013, 2014 were lower than they should have been, as she was overworked. She alleges that Ms. Matheson never gave her the recognition she deserved for all of the hard work she performed.
19She alleges that in meetings with Ms. Matheson and Mr. Moncour in August and September of 2014, they indicated that they were supportive of her attempts to advance her career with the American parent company of the respondent, but that ultimately they did not support her in these efforts. She alleges that Mr. Moncour advised he would contact an American manager for her, but she learned that he never did make that effort on her behalf.
20She also makes a generalized allegation that Ms. Matheson raises her voice to the applicant. She feels this is discrimination also. There are no dates or other particulars regarding this allegation. In oral submissions, however, the applicant indicated that she recalled that Ms. Matheson raised her voice to her a number of times in 2014 and she particularly recalls this happening in a department meeting in September 2014.
21She alleges that on November 11, 2014, Ms. Matheson asked her to provide copies of her marketing assignments from her MBA studies. She alleges that she thought it was odd, as others had not been asked to do so.
22She alleges that in a December 2, 2014 telephone conversation with an employee of the American parent company of the respondent, the employee expressed surprise at how well she spoke English. She alleges that this was because Ms. Matheson must have said something negative to the employee about the applicant’s ability to speak English.
23She alleges that Ms. Matheson told her co-workers that the applicant would be leaving the company in 3 months. She asserts that this interfered with her career prospects. She does not provide a date for this allegation, but the allegation appears in a narrative which includes events from December 2014 and January 2015.
24She alleges that in January 2015, she sent emails to Mr. Moncour, but he did not respond. She alleges that managers of the American parent company of the respondent with whom she had attempted to make contact did not return her emails and she became suspicious that this was because Ms. Matheson was giving her bad references.
25On March 2, 2015, she spoke with Mr. Moncour and complained of differential treatment, and the fact that she had not received an entry role in marketing but had been moved to the area of Research and Development without her consent. She told him she was afraid of letting Ms. Matheson know about roles she was applying for with the American parent company of the respondent, as she was afraid Ms. Matheson would interfere and she would not get the job. She asserts that she told him she was seeing a psychiatrist, but that she asked him not to tell anyone. She states that he advised her of the availability of a “Speak up” help line. She alleges that after the meeting, he did not reply to her emails.
26She alleges that Ms. Matheson told her that she should ask her “big shot MBA” friends for help finding a position she would enjoy. This is another undated allegation. It appears in a paragraph from her narrative which includes events from March 2015.
27She does not provide a date in her Application, but it appears that at some point after April 23, 2015, she sought to duplicate and adapt an American program for Hispanic employees to the Canadian respondent. She alleges that she presented a proposal to the respondent’s Diversity and Engagement Manager regarding setting up such a group. She alleges that the Diversity and Engagement manager was very interested at first, but that after the Manager spoke with Ms. Matheson and Mr. Moncour, she told the applicant that they had decided not to pursue the program in Canada at this time and told her not to share this proposal with the president of the respondent, who she was going to meet later in May 2015.
28She described her subsequent efforts in May 2015 to join the above-noted American program for Hispanic employees, and indicates that she needed a Canadian referee from the respondent to support her in her efforts. She states that in her mid-year performance review meeting with Ms. Matheson and Mr. Moncour in July 2015, they advised her that they would not support her membership in that American program as it was reserved to those in positions classified at a level 9.
29She alleges that in June 2015, she was excluded from mandatory “career discussions” to which other employees were invited. She alleges that this too was discriminatory.
30She alleges that the process employed in her 2015 performance review was not fair, as neither she nor the other employees had the opportunity to provide input prior to the completion of the document. She also alleges that there were alterations made to her final performance review from 2015 when compared with her “mid-term” evaluation, and she alleges that this resulted in an unfair performance appraisal that year.
31She alleges that in a meeting on August 2015 with Mr. Moncour and Ms. Matheson, they advised her that they would not be recommending her for a position in marketing. She alleges that Ms. Matheson told her to take her MBA and find work elsewhere. Following the meeting, she contacted the “Speak up” line and made a complaint.
32An investigation into her complaint was commenced, but the applicant indicates that she was displeased with the result.
33She alleges that she has “never been given an interview” for a marketing position, though she says she has applied for them, and alleges that her managers have blocked her career progress. This is a general assertion and she provides no dates or particulars of jobs for which she applied. She stated that she does not recall what jobs she applied for, though she indicates that she would have received a confirmation for every job application she made. She stated that she believes the respondent will have retained a record. She provided no estimations regarding dates or other particulars in her oral submissions.
34She alleges that she has not progressed in her career and that this was because of discrimination as there have been other Hispanic employees supervised by Ms. Matheson, who have not advanced either. She alleges that many Hispanic employees have left the company and she asserts that this is proof of discrimination.
35With respect to delay, the applicant filed written submissions, stating that Ms. Matheson engaged in a “course of conduct designed to prevent the applicant from advancing in her career” and that this amounts to a series of incidents. She submits that the narrative portion of her Application indicates that “throughout her time working for Ms. Matheson”, she presented numerous business ideas, none of which were considered; her workload was higher than the workload of white coworkers; Ms. Matheson consistently gave her poor performance reviews “despite her strong performance and ability to carry a significant workplace”, “throughout her employment under Ms. Matheson, the applicant was excluded from career development meetings” which other employees received; “throughout her employment”, Ms. Matheson treated her more critically, “including raising her tone of voice”; the applicant has not been promoted, had discussions about career development or opportunities and “has never been interviewed for a marketing role despite repeated applications”.
36The respondent submits that the allegation, broadly stated, is that there was a course of conduct by Ms. Matheson to block her career advancement. It states that in considering the proposed series of incidents, there is no commonality between the allegations. Rather, it submits, there are disparate allegations which include an allegation that her business proposals were not considered, she had an excessive workload, she received performance reviews that she was not pleased with, her manager raised her voice to her in a meeting, the respondent did not initiate a group for Hispanic employees, she did not receive appropriate recognition for her efforts in a group project. The respondent submits that given the lack of commonality between the allegations, no incidents prior to the one year period before the Application was filed, should be considered.
37She submits that she made allegations regarding “specific incidents of discrimination during her five years of working for Ms. Matheson: a transfer in 2010 when she was downgraded from a level 7 position to a level 4 position; the denial of her proposal for the formation of a Hispanic employee group in 2012 which she alleges was denied by Ms. Matheson; in 2014, Ms. Matheson told Ms. Bates that the applicant did not speak English well; in 2013, Ms. Matheson told her she was “different” from a white co-worker when they were discussing career advancement opportunities [in her oral submissions at the hearing, the applicant alleged that this comment was made in June 2014]; in 2014, Ms. Matheson did not recognize the applicant’s efforts in a team project and she was the only one excluded from recognition. She submits that because she alleges that she personally feels that Ms. Matheson has “been blocking my career opportunities at PepsiCo for the past 5 years”, she is alleging discrimination over the 5 year period and there is therefore a series of incidents.
38The respondent submits that the applicant’s “main complaint” is about the August 13, 2015 meeting with Ms. Matheson and Mr. Monsour when they told her they would not support her move into a marketing role in the United States. The respondent submits that the earlier events are unrelated to this allegation and are untimely. The respondent submits that the earlier events relate to complaints about workload, content of performance appraisals, and her general treatment while working in the plant prior to 2010 and after, while working in the office environment. The respondent submits that these are not a series of incidents, as they are separate and distinct and only allegations from the one year period should be considered.
Delay
39Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
40The Tribunal has said that to constitute a “series of incidents”, allegations must have some connection or nexus, such that they may reasonably be viewed as a pattern of conduct with a common theme, similar parties and/or circumstances, as opposed to events that are comprised of incidents relating to discrete and separate issues without some connection or nexus. See Alsaigh v. University of Ottawa, 2012 HRTO 2 at para. 8; Keith v. College of Physicians and Surgeons of Ontario, 2010 HRTO 2310 at para. 42. See also Duggan v. Villa Care Centre Nursing Home, 2010 HRTO 1695; Baisa v. Skills for Change, 2010 HRTO 1621.
41The applicant submits that there is a series of incidents and that all of the allegations should be considered timely. She asserts that as she has alleged that Ms. Matheson of the respondent has blocked her career progress for five years, she has established that her allegations form part of a series of incidents. I disagree. Without specific allegations of discrimination, a bald broad assertion that her career progress has been blocked does not have the effect of rendering timely allegations which are otherwise untimely.
42The fact that she points to unsatisfactory performance reviews over several years does not link her allegations so as to establish a series of incidents. There is no indication of the evidence upon which she would establish that in her performance reviews she suffered adverse treatment on the basis of race. Her assertion that she should have received a higher rating but for being overworked is, as above, another broad bald assertion, but does not assist her in establishing a series of events.
43The applicant also alleges that over the years, she has applied for numerous job vacancies, but has not received any interviews. The first difficulty with this allegation is that it is completely devoid of particulars. There are no dates, no indication of what jobs in particular she applied for, why she felt she merited an interview, and no indication of how she links her lack of interviews with a ground of discrimination. On this basis, the allegation cannot be considered. In these circumstances, it cannot assist her in establishing a series of incidents.
44A second difficulty with the applicant’s allegation of not receiving interviews is that even if she had indicated particulars and dates for this allegation, every job competition would have been a discrete event and they would not form part of a series of incidents. Each job competition would have related to separate positions. It is likely that each posting would have been answered with numerous applications, resulting in a different pool of applicants for each job posted. The requirements for many of the postings may be quite different due to the differing nature of the positions themselves. Each competition would have been a discrete event, unrelated to the previous or next one. The Tribunal has previously found that though the job competition process may look similar or even the same, the details of each hiring decision may well bear little resemblance to each other and they do not constitute a series of events. See for example Thambipillai v. Toronto District School Board, 2011 HRTO 487, and Gynane v. Lakehead District School Board, 2012 HRTO 803.
45In considering whether allegations may be considered part of a series of events, the Tribunal has generally found that events are not part of a series of incidents if there is a break in the temporal connection between them. I accept and agree with the reasoning in Chintaman v. Toronto District School Board, 2009 HRTO 1225, that “a gap of more than one year between incidents in a series would in most case interrupt the series”. See also Savage v. Toronto Transit Commission, and Farrell v. Barrie Police Services Board, 2011 HRTO 1442. In this Application, I am not persuaded that there is anything in the circumstances before me which would warrant deviating from the Tribunal’s general approach of considering a gap of more than one year as interrupting a series.
46As noted above, in oral submissions, the applicant was provided with the opportunity to furnish dates and other particulars in respect of her allegations. Where, however, the applicant has still not provided a date for an allegation, and has simply indicated that it occurred within a particular year, she has not provided sufficient specificity to establish that it forms part of a series of events. For example, the allegations that the respondent decided not to support the creation of a group she suggested in 2011 or 2012, or that the respondent did not give her recognition for her work in respect of a group for Hispanic employees in 2012, were not sufficiently particularized to establish a series of incidents. In reality, the gap between incidents in such cases could be close to two years, where for example, an allegation relates to early one year and the next allegation relates to the end of the following year. I am left without the necessary information to determine that these undated allegations form part of a series of incidents.
47I turn then, to the allegations for which she has provided dates which include at least a month of the year, if not a day, it is clear that her allegation that the respondent did not accept her suggestion for a product in 2007, is untimely. The Application contains no further allegation of discrimination until September 2010, establishing a gap of approximately 3 years.
48Her allegation of a demotion in September 2010 is also untimely, as there are no allegations of discrimination for which she provides dates for several years following that.
49The applicant states that in May 2014, her duties were divided among 4 positions. She states that the white individual occupying one of these positions complained about the workload and that individual’s workload was decreased. This, however, is not an allegation of discrimination as she has not indicated how the respondent’s response to this individual’s request resulted in adverse treatment of her.
50The next allegations for which she provides some temporal context are alleged to have occurred in June 2014, when she states that her supervisor rejected her proposal to improve “onboarding”, told her that she was “different” from a white co-worker with whom she sought to compare herself, and neglected to acknowledge her work in a group project, leaving her as the only person in the group to go unrecognized. Following these allegations, she alleges that her supervisor raised her voice to her in front of other people at a meeting in September 2014, required her to provide her with examples of her work from her MBA program in November 2014, but that no one else had been required to do so. She also suspects that her supervisor may have criticized her command of the English language as on December 2, 2014, an employee of the respondent’s American parent company was surprised that she spoke English well. She also alleges that in late December or early January 2015, she was advised that her supervisor had told others that she would be leaving the company within 3 months. She also alleges that in January 2015 she did not receive responses to her emails and she suspects it is because her supervisor had been speaking ill of her.
51The next dated allegations are, on their face, timely, occurring within the one year period prior to the filing of this February 1, 2016 Application.
52The allegations dating from June 2014 and onward, may form part of a series of incidents with the allegations which relate to events after February 1, 2015, and may be timely. In any event, at this stage of the proceedings, I find that it would be premature to dismiss those allegations as being untimely. Though the respondent submits that all allegations prior to February 1, 2015 should be dismissed as they are separate incidents lacking commonality, that level of analysis, in my view, is better left for the hearing on the merits where both parties have the benefit of calling evidence in support of their positions. Accordingly, the applicant’s allegations dating from June 2014 onward are not dismissed at this stage as untimely. For the reasons stated above, the allegations relating to incidents prior to June 2014 are dismissed as untimely.
53To be clear, at this stage I make no comment as to the strength of the allegations dating from June 2014 and onward, or the likelihood that the applicant will be able to establish that they are incidents of discrimination.
Amendments to the Application
54Rule 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”.
55In determining requests to amend Applications under s. 34 of the Code, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See for example Dube v Canadian Career College, 2009 HRTO 336, Wozenilek v. 7-Eleven Canada Inc. 2009 HRTO 926, Dunford v. Holiday Ford Sales 2009 HRTO 1563 and Boldt-Macpherson v. The Hoita Kokoro Centre et al 2008 HRTO 16.
56On March 11, 2016, the applicant sent the Tribunal a copy of a March 10, 2016 letter in which her employer advised her that she was being required to take a paid medical leave of absence for an indefinite period, effective immediately. The letter indicated that the decision followed receipt of her Application to the Tribunal and advised her that “we could not help but be extremely concerned, to the point where we believed that it was incumbent on us to remove you from your workplace. You state in your application that your health has been affected significantly”.
57On January 5, 2017, the applicant filed a Request for Order During Proceedings (RFOP) requesting that her Application be amended so as to include an allegation of reprisal, with reference to the March 10, 2016 letter to the applicant. In her RFOP, she submitted that it would not lengthen or unduly complicate the proceedings, and that it was a discrete event that directly related to the substance of the original Application. It noted that she could not have raised the allegation at the time of the original Application, as the event had not yet occurred. It submitted that the request was brought well before first scheduled date for hearing, which was March 6, 2017.
58The respondent objected to the applicant’s request to amend. It stated that she should be required to file a new Application in connection with the March 10, 2016 letter. It submitted that it was too close to the March 6, 2017 hearing date and that she should have filed her request earlier. It cited Delaney v. Peel District School Board 2012 HRTO 1936 (“Delaney”) in which the Tribunal considered the fact that the applicant waited more than 10 weeks to file the request to amend and neither party had disclosed witnesses with respect to the allegations in advance of the hearing. It noted that the request to amend in Delaney was denied, without prejudice to the applicant’s right to file a new application in respect of the reprisal allegations. It noted that the applicant’s RFOP was filed almost 10 months after the March 10, 2016 letter and submitted that it would not have sufficient time to prepare for the March 6, 2017 hearing date. It also submitted that it would be prepared to agree to the amendment if a new hearing date were to be scheduled by the Tribunal.
59The nature of the amendment the applicant proposes in her January 5, 2017 RFOP, is linked to the Application on its face. The letter from the respondent which forms the basis of her allegation of reprisal makes reference to this Application and certain information the respondent gleaned from it, which it indicates prompted it to take the action it did. Given the stated linkage between the event which forms the basis of the new allegation and the Application, I would not expect that this amendment would have a deleterious impact on the course of the hearing.
60Though the request to amend was not formally made at as early a date as it could have been, it was nonetheless raised in a timely fashion and I note in particular that it was raised within the year after the event occurred. Further, I note that the only prejudice the respondent has indicated related to its ability to prepare for this allegation prior to the first scheduled day of hearing, a day which was not ultimately used for a hearing into the merits of the Application.
61In the circumstances where the new allegation is clearly linked to the Application and there was no excessive delay in filing the January 5, 2017 RFOP and the respondent will suffer no prejudice by its addition at the reconvened hearing date, I find that it is appropriate to include the allegation of reprisal described in the January 5, 2017 RFOP and the Application is so amended. The respondent will be given the opportunity to file an amended Response so as to address the new allegation.
62On February 10, 2017, the applicant filed a further RFOP, requesting another amendment be made to the Application. In particular, she alleged that the respondent terminated her employment on January 30, 2017, and that though the respondent stated that it was due to restructuring, she alleges that it was further reprisal. She submitted that it would be appropriate to include this allegation, as it could not have been included in the initial Application due to the timing of the events. She submits that the amendment would “streamline” the proceedings and “ensure that all relevant information is before the Tribunal at the same time”. She submits that the amendment would not prejudice the respondent, is not complex and the request was being made “well in advance” of the hearing date.
63The respondent objected to the second request to amend. It stated that if the Tribunal were to grant all of the applicant’s requests to amend, the hearing date would have to be rescheduled.
64The February 10, 2017 RFOP seeks to add a second allegation of reprisal to the Application. This allegation, like the allegation stated in the January 5, 2017 RFOP, is an allegation that the respondent reprised against the applicant for having filed this Application. It is to be expected that in arguing this reprisal allegation, the parties will address the Application and the first allegation of reprisal. In the circumstances, it appears that there may be considerable overlap in the presentation of the two allegations of reprisal. Further, should there be any finding of liability in respect of either allegation of reprisal, there may be issues of remedy which would overlap.
65The February 10, 2017 request to amend was made in a timely fashion, within two weeks after the incident giving rise to the allegation of reprisal. While it was made close to a scheduled hearing date, as noted above, the date was not ultimately used for a hearing into the merits of the Application. The respondent indicated its concern with the timing of the RFOP as it would not have been able to respond to or prepare to address the second reprisal allegation at the then-looming scheduled hearing day.
66In the circumstances where the February 10, 2017 allegation of reprisal is linked to the amended Application and there was no excessive delay in filing the February 10, 2017 RFOP and the respondent will suffer no prejudice by its addition at the reconvened hearing date, I find that it is appropriate to include the allegation of reprisal described in the February 10, 2017 RFOP and the Application is so amended. The respondent will be given the opportunity to file an amended Response so as to address the new allegation also.
Request for a summary hearing
67The respondent’s request for a summary hearing is denied. In accordance with Rule 19.5 A of the Tribunal’s Rules of Procedure, “The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request.”
order
68For the reasons set out above, the Tribunal makes the following orders:
i. the applicant’s allegations prior to June 2014 are dismissed as untimely;
ii. the applicant’s allegations from June 2014 and onwards are not dismissed as untimely at this point;
iii. the applicant’s January 5, 2017 request to amend her Application is granted and the Application is so amended;
iv. the applicant’s February 10, 2017 request to amend her Application is granted and the Application is so amended;
v. the respondent may file an amended Response to the amended Application within 35 days of the date of this Interim Decision;
vi. the applicant may file an amended Reply within 14 days of receipt of the amended Response;
vii. the respondent’s request for a summary hearing is denied; and
viii. the Registrar will schedule continuation dates in this matter.
Dated at Toronto, this 18^th^ day of September, 2107
“Signed by”
Maureen Doyle
Vice-chair