Johl v. ArcelorMittal Dofasco, 2017 HRTO 923

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Johl Applicant

-and-

ArcelorMittal Dofasco Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: July 21, 2017 Citation: 2017 HRTO 923 Indexed as: Johl v. ArcelorMittal Dofasco

1A hearing in respect of this Application is scheduled for August 3 and 4, 2017 in Hamilton.

2On July 4, 2017, the Tribunal issued a Case Assessment Direction that, among other things, directed the Tribunal to set up a Summary Hearing by teleconference to address the issue of whether the applicant has a reasonable prospect of success in demonstrating that he experienced adverse treatment by the respondent and that adverse treatment was based, at least in part, on the applicant’s sex and family status or that the adverse treatment were acts of sexual harassment, sexual solicitation or advances, and reprisal.

3A Summary Hearing was completed on July 20, 2017 by teleconference. As was explained at the commencement of the hearing, the purpose was to allow the applicant an opportunity to explain what evidence he would be presenting at the hearing that would connect the allegations he had made to the grounds he had listed in his Application.

4As was also explained, after examining the allegations and hearing the parties’ submissions, the Tribunal would determine if all or some of the allegations are dismissed.

5For the purpose of determining if the applicant has a reasonable prospect of demonstrating that he experienced a breach of his Code rights, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. However, there was no witness testimony heard during the summary hearing so the findings made in this Interim Decision are not determinative of the findings on the merits. All the allegations must still be proven on a balance of probabilities based on the evidence that is presented during the hearing on the merits of this Application.

6The applicant provided some clarification on the evidence he would have to demonstrate the connection between his allegations and the grounds of the Code.

7The respondent filed written submissions in advance of the hearing and made oral submissions during the hearing.

Reasonable Prospect of Success

8The following findings and directions are based on the submissions made by the parties during the Summary Hearing teleconference.

i. Incidents 1-8 as outlined in the Application: It is obvious that there is a dispute on the facts and legal issues that are fundamental to a determination on whether the applicant’s rights under the Code have been breached in these alleged incidents. At this point, I am not prepared to find that the applicant has no reasonable prospect of demonstrating that his rights based on the grounds of sex and family status, sexual harassment, sexual solicitation or advances, and reprisal have been breached. The Tribunal will hear evidence on incidents 1-8 at the merits hearing on August 3 and 4, 2017.

ii. Incident 9: In the Application, the applicant described this incident as a breach of his rights on the basis of family status. During the summary hearing he stated that he is not in a parent and child relationship and acknowledged that this incident could not fall under the ground of family status.

The applicant then stated that the delay in issuing his Record of Employment was a form or reprisal for asserting his Code rights. He provided no indication of the evidence he would present to demonstrate that the person who would be responsible for issuing the Record of Employment had knowledge that he had attempted to assert his Code rights and had the intention to reprise against him for asserting these rights (See: Noble v York University, 2010 HRTO 878).

I find that the applicant has no reasonable prospect of demonstrating that this was an act of reprisal as defined under the Code. This incident is dismissed and the Tribunal will not hear evidence about this incident at the hearing on August 3 and 4, 2017.

Amend to Add the Ground of Disability

9When the applicant served and filed his witness statements and hearing documents, he indicated that his family doctor would be providing a written statement. The statement was then served and filed on July 12, 2017. In this statement, the doctor indicated that the applicant had received a recent disability diagnosis.

10During the summary hearing, the applicant made a request to amend his Application to add the ground of disability. He stated that the recent diagnosis could explain some of the basis for his poor performance in certain areas of his performance evaluation.

11There were no particulars about the applicant’s disability or the respondent’s alleged failure to accommodate the applicant’s disability-related needs set out in the Application.

12The respondent objected to the request to make this amendment on the basis that this broadens the scope of the Application significantly and since the respondent only learned of this allegations recently; it had no opportunity to respond. The respondent submits it would experience prejudice if this amendment were allowed without affording it the opportunity to properly respond. It would be further prejudiced by the need to respond to the allegations as this point as it would need to make further investigations and inquiries to seek its evidence. This would create a significantly delay in the process of this Application.

Analysis and Decision

13In 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 Inc., 2009 HRTO 926.

14Section 34(1) of the Code imposes a one year period from the date of the last alleged incident of discrimination to file an application to this Tribunal. While s. 34(1) applies only to when a person may apply to the Tribunal, and not to when an applicant can seek an amendment, s. 34(1) does set out the expectation that an applicant will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced in allowing amendments: see Khokher v. Intercon Security Limited, 2011 HRTO 1493 and Anderson v. Stieber Berlach LLP, 2012 HRTO 1471.

15The applicant is alleging that his newly received diagnosis could explain his poor performance while he was working at the respondent.

16I agree with respondent that this allegation brings the allegations made in the originally filed Application and Reply into a different context and expands the scope of the Application and significantly expands the scope of these proceedings. I accept the respondent’s assertion that if the Tribunal were to allow the amendments they would be required to do extensive new research and file a revised Response. In order to properly respond to this new allegation, they would be required to locate additional documentation and interview witnesses who may no longer accurately recall events alleged. As a result, they would be prejudiced in their ability to properly prepare a response to the new allegations at this time.

17As well it is clear from the doctor’s note and the applicant has indicated that this diagnosis was made after the applicant was terminated. It is not disputed that the respondent had no knowledge of the applicant’s disability and the applicant had not made a request to have his disability accommodated. For these reasons, I find that even if I were to allow the applicant’s request to amend the Application, he would have no reasonable prospect of success in demonstrating that the respondent breached his rights on the basis of disability.

18For these reasons, the Request to amend the Application is denied.

19As the ground of disability will not be addressed by the Tribunal, Dr. Prewal’s note is not relevant to the issues to be determined in the Application and it will therefore not be entered into evidence.

Order

20The Tribunal will hear evidence on incidents 1-8 as detailed in the Application at the hearing on August 3 and 4, 2017.

21The allegation described as Incident 9 in the Application is dismissed. The Tribunal will not hear evidence about this incident at the hearing on August 3 and 4, 2017.

22The applicant’s the Request to amend the Application is denied. Dr. Prewal’s note will not be entered into evidence at the hearing.