Charles Welton v. Medcon Mechanical Ltd., 2017 HRTO 1708

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charles Welton

Applicant

-and-

Medcon Mechanical Ltd.

Respondent

INTERIM DECISION

Adjudicator: Bruce Best

Date: December 28, 2017

Citation: 2017 HRTO 1708

Indexed as: Welton v. Medcon Mechanical Ltd.

WRITTEN SUBMISSIONS

Charles Welton, Applicant

Wade Poziomka, Counsel

Medcon Mechanical Ltd., Respondent

Brent Harasym, Counsel

Introduction

1This Application was brought under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). By Notice of Hearing dated August 28, 2017, the matter is scheduled to be heard on April 23 and 24, 2018, in St. Catharines.

2The applicant alleged in his Application and Reply that he was subject to discrimination in employment, and that he was denied opportunities to improve his skills or to seek promotion because of his disability. In particular, he alleges that he was held back from an apprenticeship because the respondent did not think he was capable, because of his disability, to succeed in the position.

3On September 19, 2017, the applicant filed a Request to amend the Application. The amendments include allegations that a supervisor had made dismissive or derogatory comments about him and his disability. The applicant says he first learned about these comments in May 2017. The Request further indicates that in July 2017, he received documentary evidence in the form of screen shots of text messages from August 2015 which support the allegation that he was viewed by the respondent as less capable because of his disability, and further were mocking him because of his disability. He argues that the comments and text messages constitute separate claims of discrimination, and further are evidence in support of the allegations raised in the Application. The applicant is further seeking to increase the monetary remedy sought based on the comments.

4The respondent objects to the Request to amend. First, it suggests that the proposed amendments should not be allowed, relying on Wrolstad v. Ontario (Natural Resources and Forestry), 2017 HRTO 324 (“Wrolstad”) at para. 20, as they are not simply providing particulars of the alleged discrimination, but are in fact substantial new allegations, and that given the late stage of the proceedings the amendments should not be allowed. They further argue that the allegations are untimely, as they were first raised in September 2017, and were therefore more than two years after the alleged comments were made.

5The applicant is not claiming the new allegations are simply particulars for the allegations raised in the original applications. He is also clearly raising these as new incidents of overt discriminatory actions. As noted by the respondent, he in fact also filed a second application, under Tribunal file number 2017-30290-I, based on these allegations. The applicant indicates that this was done knowing the respondent was opposing the amendments in an effort to protect his rights. Though they occurred more than one year prior to the filing of his Request to amend in September 2017, he claims they are nonetheless timely as he only discovered that these incidents had occurred in May 2017.

Analysis and Decision

6The Tribunal has the discretion to amend an application under Rule 1.7(c) of its Rules of Procedure. The question is whether, in all the circumstances, it would be fair to grant the amendments. The factors generally considered in deciding to exercise this discretion are the nature of the proposed amendments, the reasons for requesting the amendments, the timing of the request to amend, and the prejudice to the respondent. See Odell v. Toronto Transit Commission, 2001 CanLII 26210 (ON HRT), and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

Evidence

7There are two separate issues raised by the applicant’s Request. First is whether the applicant can put forward evidence of these incidents, even if they are not properly raised as separate incidents of discrimination. Second is whether the applicant is entitled to seek an additional finding of liability and an additional remedy based on the newly raised incidents.

8It is not unusual that an applicant may commence proceedings without having all the evidence to support a claim. That such evidence may surface after an Application is filed does not mean such evidence should not be heard. It is clear that an applicant should not wait to gather the evidence to support an allegation of discrimination before filing, as doing so will not extend the limitation periods under s.34(1) of the Code. See Klein v. Toronto Zionist Council, 2009 HRTO 241 at paras. 23-24, Diler v. Cambridge Memorial Hospital, 2010 HRTO 1224 at para. 13, and Iyirhiaro v. Toronto Transit Commission, 2011 HRTO 462 at paras. 11-12. Where an applicant commences an Application in a timely fashion, and subsequently obtains evidence to support the allegations, such evidence will be generally be admissible even if it relates to incidents that occurred more than a year before the evidence was disclosed.

9Whether or not the applicant is entitled to a separate remedy for the incidents raised in the Request to amend, as addressed below, he would nonetheless be entitled to present evidence respecting these allegations as background to support his timely allegations. The Tribunal has held that, though they may not result in a finding of liability or a remedy under the Code, untimely allegations may nonetheless be raised for the purpose of putting timely allegations in context. See Killeen v. Soncin Construction, 2013 HRTO 350 at para. 38, Franceschina v. Essar Steel Algoma Inc., 2012 HRTO 1634 at paras. 6-7, and Sandhu v. Regional Municipality of Peel Police Services Board, 2014 HRTO 1394 at para. 8. On the basis of these cases, I find it is appropriate to allow the Request to amend.

Amendment to include New Allegations

10The Request to amend also seeks to raise the allegedly discriminatory comments and text messages as independent incidents of discrimination. These are raised for the first time more than one year after they occurred. Though the Code does not specifically preclude allowing an application to be amended to include allegations older than one year, as it does preclude the filing of an Application under s. 34(1)(a), I agree that an amendment should in general not be permitted where the incidents occurred more than a year prior to the allegations first being raised. See Kilpatrick v. Ontario (Attorney General), 2016 HRTO 1142 at para. 50.

11The applicant’s argument in the present case is discoverability. He claims that he first found out about the comments in May 2017. The respondent argues that with due diligence he could have discovered the alleged comments earlier.

12My decision to grant the amendments is without prejudice to the respondent to argue that no finding of liability or remedy is appropriate given when the proposed amendments were raised. Whether the applicant knew or should have known about the comments earlier is a question that cannot be determined in the absence of evidence. Whether or not the incidents should be considered as separate incidents of discrimination is an issue that is best left to the adjudicator hearing case on the merits.

Remedy

13The Tribunal has generally permitted a party to amend the remedy sought. See Marino v. Compuware Corporation of Canada, 2011 HRTO 1390. I see no prejudice to permitting the amendment here.

14The amendment to the remedy is, of course, made without any determination as to the appropriateness of the remedies sought, and without prejudice to any position the respondents may wish to take regarding this issue.

Order

15The applicant’s Request to amend the Application, and to increase the remedies sought, is granted.

16The respondent may file an amended Response within 35 days of the date of this Interim Decision.

17Application 2017-30290-I will be administratively closed by the Tribunal, and the Application will continue under Tribunal file number 2016-25572-I.

18I am not seized.