A. v. Integrity Roofers, 2017 HRTO 919

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.

Applicant

-and-

Integrity Roofers

Respondent

INTERIM DECISION

Adjudicator: Jacek Janczur

Date: July 21, 2017

Citation: 2017 HRTO 919

Indexed as: A v. Integrity Roofers

WRITTEN SUBMISSIONS

A., Applicant

Self-represented

Integrity Roofers, Respondent

Shay Barat, Representative

Introduction

1This Application alleges discrimination with respect to employment because of disability, sex, sexual orientation, gender identity and gender expression contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges that she was subjected to discriminatory treatment when she attended a job interview with the respondent on October 27, 2015.

3This Interim Decision deals with five Requests for Order during Proceedings (“RFOP”) filed by the applicant and a request by the respondent to dismiss the Application of the basis of delay.

DELAY

4The event that gave rise to the Application occurred on October 27, 2015. The Application was filed on October 27, 2016 exactly one year after the event. The Application is timely as it was filed on the last day within the one year time limit. The request to dismiss for delay is refused.

ANONYMIZATION

5The Applicant filed an RFOP along with the application requesting that the Application be anonymized. The applicant is a transgender woman who cites a lifelong experience of discrimination and abuse. The Application alleges discrimination in employment and this is the main reason the applicant cites in support of her request for anonymity. She fears that if her identity is made known she will experience further discrimination in employment.

6The respondent opposes the request and is of the view that anonymization violates the open court principle.

7The Tribunal’s Practice Direction on Anonymization of HRTO Decisions provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so, however, such an order is only made in exceptional circumstances. When determining whether to make an anonymization order, the Tribunal’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.

8In A.B. v. Hamilton (City), 2015 HRTO 745, the Tribunal dealt with a similar request and stated at paragraph 9:

(…)it is important for the Tribunal to acknowledge the serious risks to the applicant that could result from a breach of her privacy. I accept, as the Tribunal did in XY, that revealing the applicant’s full identity risks subjecting her to stigma and prejudice and could impede her ability to live in and express her gender identity. I find that the protection of the applicant’s interests outweigh the interests of a fully open process particularly in light of the fact that the applicant is only requesting that we use initials and not reveal any other details that could lead to her identification and is not requesting a full publication ban.

9As in A.B., the Tribunal finds that the reasons provided by the applicant are compelling and that these are appropriate circumstances in which to anonymize an application and the request is granted. The applicant will be referred to as “A”.

10The respondent shall also refer to the applicant by the initial “A.” and shall not include any potentially identifying details in any of their communications about this Application.

RESPONDENT’S EXTENSION TO FILE RESPONSE

11The Application was filed on October 27, 2016. The Application was delivered to the respondent on December 6, 2016 by regular mail at the address provided by the applicant. The Tribunal resent the Application to the respondent on March 14, 2017 by regular mail and email.

12The respondent wrote to the Tribunal on March 17, 2017 explaining that it had relocated its offices since the time that the event that gave rise to the Application occurred and that it had not received the Application prior to March 14, 2017. The respondent requested until June 30, 2017 to file its Response. The Tribunal granted an extension until April 27, 2017 and the Response was filed on April 25, 2017.

13In an RFOP filed with the Tribunal on March 21, 2017, the applicant objected to the extension of time granted to the respondent. The applicant asserts that the respondent had not yet moved its premises at the time that the Application was originally delivered and that the respondent is not being truthful about the timing of its relocation.

14The applicant relies on the fact that the March 17, 2017 letter was written on letterhead with the address of the former premises and that the letter was not returned to the Tribunal as undeliverable.

15It is a fact that as soon as the Application was sent by email the respondent replied promptly and requested an extension of time.

16In any event, as the extension has already been granted, the question is moot.

REPRISAL

17On March 21, 2017, the applicant filed an RFOP requesting that she be allowed to amend the Application to include the ground of reprisal and to increase the amount that she seeks in monetary compensation from $20,000.00 to $220,000.00 as a result of the alleged reprisal.

18This request is based on a March 17, 2017 letter from the respondent to the Tribunal. In the letter, which was copied to the applicant, the respondent stated that he was responding directly to the applicant and stated that if he incurred legal costs to defend what he viewed as an unmeritorious claim, he would seek “substantial indemnity costs” against the applicant and garnish her wages if necessary to recover those costs. He further imposed a deadline of April 30, 2017 for the applicant to withdraw her Application or he would seek costs irrespective of the outcome of the Application. He said that he would only give the applicant one chance to withdraw her Application.

19Whether the threat contained in the above referenced letter is a basis for an allegation of reprisal raises the question of absolute privilege. In Ornelas v. Casamici Restaurant, 2010 HRTO 1078 at paragraph 90, the Tribunal explained that absolute privilege

(…) is a common law principle which, among other things, prohibits legal proceedings which are based on statements made by legal counsel while representing their clients in respect of ongoing or contemplated judicial or quasi-judicial proceedings. It is rooted in the principle that legal counsel must be free to carry out their professional duties to their clients without fear of consequences. In this way, absolute privilege exists to serve the public’s interest in the orderly and effective administration of justice.

20In Carlos v. 1174364 Ontario, 2009 HRTO 311, when referring to absolute privilege, the Tribunal held that “[t]he privilege protects all persons [emphasis mine] involved in legal proceedings, including proceeding before the LTB and this Tribunal.” As such, it would apply to the respondent in this case.

21The letter which forms the basis for the applicant’s allegation of reprisal was sent to the Tribunal by the respondent when he first claims to have received the Application from the Tribunal. The respondent is self-represented and was communicating with the Tribunal to explain that he had not previously received the Application and to request an extension of time to respond. Clearly, the letter to the Tribunal was made in respect of a contemplated quasi-judicial proceeding.

22Accordingly, absolute privilege applies to the letter and it cannot form the basis for an allegation of reprisal. The Tribunal notes that in subsequent correspondence to the Tribunal, the respondent explained that he did not know that he was unable to recover the costs associated with being a respondent to an application before the Tribunal.

23The request to amend the Application to include an allegation of reprisal is denied.

24The request to increase the amount of monetary compensation requested in the Application is granted.

25The Tribunal regularly allows applicants to change the amounts of compensation requested at this stage in the proceedings as it will be decided by the adjudicator who hears the application if it proceeds to hearing.

AMEND APPLICATION TO PROVIDE MORE DETAIL

26The applicant filed an RFOP on March 21, 2017 to amend her Application to provide more explanatory detail aimed at clarifying the relationship between disability, sex, sexual orientation, gender identity and gender expression. The applicant explains that one of the objectives of the Application is to assist the Tribunal in understanding these terms which are currently not defined.

27The applicant provided a lengthy discussion of these terms but did not specify precisely how she wants the Application amended.

28The respondent opposes the request to amend the Application stating that it should not be subjected to a proceeding simply to assist the applicant in obtaining a definition of the protected grounds in question.

29The primary reason that the Application was filed is to obtain redress for the discriminatory treatment to which the applicant alleges she was subjected when she was interviewed for a positon with the respondent.

30Rule 1.7 of the Tribunal’s Rule of Procedure allows the Tribunal to allow any filing to be amended in order to provide for the fair, just and expeditious resolution of any matter before the Tribunal.

31In determining a request to amend a pleading, the Tribunal will consider a number of factors, including the stage at which the request to amend is made, the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the other party, and the impact on the course of the hearing. See Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 535; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada, 2009 HRTO 926.

32In this case, the request is being made before the matter has been scheduled for hearing, and there is no prejudice to the respondent if the request is granted.

33Because of the lack of precision in her request, the applicant is directed to refile the request setting out the specific amendments she wishes to make to the Application.

REQUEST TO HAVE THE TRIBUNAL NOT RECEIVE THE RESPONSE

34On May 24, 2017, the applicant filed an RFOP requesting that the respondent’s Response be ‘disqualified’ because it was not delivered to the applicant. Rule 8 of the Tribunal’s rules does not require a Response to be delivered to the other parties to the application. The request is denied.

ORDERS AND DIRECTION

35The Application is anonymized. The applicant will be referred to as “A”.

36The request to deny the respondent an extension to file its Response is denied.

37The request to amend the Application to include the ground of reprisal is denied.

38The applicant is directed to refile her RFOP explaining precisely now she seeks to have the Application amended to include explanatory detail regarding the relationship between disability, sex, sexual orientation, gender identity and gender expression. If the application is amended the respondent will be given an opportunity file an amended response.

39The request not to receive the respondent’s Response is denied.

40I am not seized.