Diane Gan v. District School Board of Niagara, 2017 HRTO 1664

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Gan Applicant

-and-

District School Board of Niagara Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: December 15, 2017 Citation: 2017 HRTO 1664 Indexed as: Gan v. District School Board of Niagara

WRITTEN SUBMISSIONS

Diane Gan, Applicant Self-represented

District School Board of Niagara, Respondent John-Paul Alexandrowicz and Jeffrey Patterson, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin and age. The applicant is an occasional teacher employed by the respondent.

Background

2In an earlier Interim Decision in this matter, the Tribunal dismissed most of the Applicant’s allegations for delay or because they have no reasonable prospect of success following a summary/preliminary hearing. See 2017 HRTO 1092. At paragraph 5 of that Interim Decision, the Tribunal noted that the applicant filed a large amount of material, including a request for production of documents and to amend the Application on March 20, 2017, the day before the second day of the summary/preliminary hearing. The Tribunal declined to address that request during the summary/preliminary hearing, as the respondent had had no opportunity to respond to it. As part of the Application continued following the summary/preliminary hearing, the Tribunal directed the respondent to respond to the applicant’s request, which it did.

The Request

Production Request Premature

3The applicant requested the production of certain documents. The Tribunal is in the process of scheduling a hearing of the merits of the applicant’s remaining allegations, but dates have not yet been set. As a result the deadline for the parties to deliver arguably relevant documents, pursuant to Rule 16.1, has also not been set. The Tribunal will generally not order production of documents before the Rule 16.1 deadline. Accordingly, the applicant’s request for production is denied as premature. Until the Tribunal sets the Rule 16.1 deadline the applicant is to refrain from filing any requests for production of documents.

Request to Amend

4The request to amend is divided into two parts. Under part “A”, the applicant requests “ … the HRTO to open/re-open all secondary and elementary incidents and other issues especially…” What follows is a list of incidents, of which all but three were included in the Application and have been addressed in 2017 HRTO 1092. The three new allegations are alleged to have occurred on January 13, 2017, at Thorold Secondary School; between October 21, 2016 and January 11, 2017, at Stamford Collegiate Secondary School; and on June 15, 2015, at St. Catharines Collegiate Secondary School. The applicant received a Letter or Counsel/Expectations (“LOCE”) from the principal at Thorold Secondary School on January 13, 2017. The applicant believes that the letter was unwarranted and amounted to discrimination and reprisal. The applicant taught several classes between October 21, 2016 and January 11, 2017 at Stamford Collegiate Secondary School. The applicant states that the classes were often interrupted by students who were not in her class, who behaved rudely and disrespectfully towards her. The applicant believes that the school administration did not support her adequately and unfairly asked her not to accept work teaching Design and Technology classes. The applicant states that she received a LOCE from Jim Morgan, the Superintendent of Human Resources regarding her work at St. Catharines Collegiate Secondary School. The applicant provided very little detail about this matter, whether in her request or in materials filed subsequently (see below), other than to indicate that the LOCE should have come from the principal and not the superintendent.

5Under part “B” the applicant requests “Addition to Form 1, sent on February 12 and May 14, 2014, (10) Remedies: Monetary Compensation”. The Form 1 the applicant sent on February 12, 2014 is her original Application. At question 10 of the form, the applicant requests $25,000 in monetary compensation, as well as a long list of non-monetary remedies and remedies for future compliance. In the Form 1 the applicant sent on May 14, 2015, the applicant requested $25,000 in monetary compensation “plus financial lost and others that are suggested by the Lawyer/HRT” and additional non-monetary remedies and remedies for future compliance. It would therefore appear that the applicant wishes to amend the remedies she seeks to the remedies set out in the Form 1 she sent on May 14, 2015.

The Response

6As noted, the respondent filed a Response to a Request for an Order addressing both the request for production of documents and the requested amendments. Given my ruling regarding the production request, above, it is unnecessary to record the respondent’s submissions on this issue.

7The applicant’s request was included in a package of documents she filed on March 20, 2017 that is approximately 300 pages long. As is the applicant’s unfortunate habit, the applicant included in the package several repetitive lists of incidents that she has characterized in various ways. As is also unfortunately typical, the purpose of these lists is not clear. Based on the content of the applicant’s request, these lists do not in my view form part of the request and are not in my view incidents that the applicant seeks to add to the Application, but were documents the applicant intended to rely upon at the summary/preliminary hearing. The respondent has apparently interpreted the request more broadly, and, based on the various lists included in the applicant’s package, identified 34 new allegations the applicant seeks to add to the Application. Given the lack of clarity apparent in the applicant’s submission, this interpretation is not necessarily unreasonable in my view.

8In any event, the respondent submitted that it would suffer prejudice if the Tribunal permitted the amendments the applicant requests. The respondent submitted that many of the allegations date back several years, involved different schools and personnel and different types of allegations. The respondent would be required to investigate and respond to the allegations and the scope of the Application would be significantly expanded. The respondent noted that the Tribunal has limited the scope of the Application in 2017 HRTO 1092.

Analysis and Decision

Amendment Request

9In determining requests to amend pleadings under section 34 of the Code, 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 Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066, 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.

10The allegations the applicant seeks to add to the Application are similar to many of the allegations she made in her original Application, i.e., that she was unfairly criticized and disciplined, “over supervised”, blocked from teaching assignments and made to “feel unwelcome” at several of the respondent’s schools. These allegations are also similar to many of the allegations set out in the original Application because, on their face, there is no indication of any link between the respondent’s alleged actions and the Code grounds on which the applicant relies. Consequently, it appears that these allegations may have no reasonable prospect of success, which would require a second summary hearing to evaluate. A second summary hearing would necessarily delay the Application, which is at the hearing stage. Regardless of how the request to amend is interpreted, allowing the amendments would require the respondent to investigate and respond to the allegations, which would also delay the hearing of this matter. The allegations the applicant seeks to add are not similar to the remaining allegations in the Application, and allowing the amendments would accordingly expand the scope of the Application. Although dates for the merits hearing of this Application have not been set, the matter is at the hearing stage; therefore, the amendment request comes at a late stage in the proceeding. For these reasons, I find that it would be inappropriate to allow the applicant to add these allegations to the Application.

11The request to amend the remedial relief the applicant requests is granted. The Tribunal will generally allow requests to amend an applicant’s remedial relief, since the mere fact that a remedy has been requested is no indication that the Tribunal will grant it. This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

The Applicant’s Subsequent Filings

12After the respondent filed its response to the applicant’s request, the applicant submitted two sets of documents on September 13 and 15, 2017, respectively. The first filing includes a Request for an Order During Proceedings purporting to be a request to amend the Application, a Form 1 and Form 1A that have purportedly been amended, and a document making submissions about LOCEs. The second submission includes another amended Form 1 and what appear to be submissions identical to those filed on September 13, 2017, in support of the request to amend.

13On September 22, 2017, the respondent filed a letter objecting to these documents. The respondent submitted that these documents are duplicative and inappropriate. The respondent requested guidance regarding whether it must respond to these documents.

Analysis and Decision

14First, the duplicate requests to amend the applicant filed on September 13 and 15, 2017 are plainly not requests to amend the Application. Rather, the applicant’s submissions purport to reply to submissions the respondent made during the summary/preliminary hearing. The summary/preliminary hearing is complete and the applicant was not entitled to make submissions after the fact. There was absolutely no basis for the applicant to file an amended Form 1 or Form 1A without the Tribunal’s permission. Similarly, there is no basis for the applicant’s submissions about LOCEs. It would appear that this document is another after-the-fact submission. In these circumstances, I have had no regard to these documents in rendering my decision regarding the amendment request filed on March 20, 2017, and the respondent need not respond to any of the documents the applicant filed on September 13 and 15, 2017. I would note, however, that, contrary to the applicant’s assertion, the Application was not amended as a result of the applicant’s filing of May 15, 2014, as noted a paragraph 5 of 2017 HRTO 1092.

Order

15The Tribunal orders as follows:

1. The request for production of documents is denied as premature;
2. The request to amend the factual allegations of the Application is denied; and,
3. The request to amend the remedial relief requested in the Application is granted.