Shatrice Williams v. OTG Management YYZ, LLC, 2017 HRTO 941

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shatrice Williams Applicant

-and-

OTG Management YYZ, LLC Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 25, 2017 Citation: 2017 HRTO 941 Indexed as: Williams v. OTG Management YYZ, LLC

WRITTEN SUBMISSIONS

Shatrice Williams, Applicant Olanyi Parsons, Counsel

OTG Management YYZ, LLC, Respondent Michael Comartin, Counsel

1This Interim Decision addresses the applicant’s request to amend her Application, filed on July 12, 2017.

applicant’s application

2The applicant filed this Application on March 30, 2016. In her Application, she alleged that the respondent discriminated against her because of race, sex and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”). The applicant was self-represented at the time she filed her Application.

3The Application sets out the following allegations:

a. that an employee of the respondent’s, Terrance McCook, grabbed her from behind and deposited ice cubes into her underwear;

b. that Mr. McCook became aggressive toward the applicant when she tried to put a stop to his behaviour, accused her of not wanting to tip him out, and created lies to get her terminated;

c. that the respondent’s management failed to appropriately deal with her complaints about the incident; and

d. that the respondent terminated her employment for discriminatory reasons.

4In section A9 of her Application, the applicant indicated she was discriminated against in discipline; in being fired; in comments, displays, jokes, harassment, or poisoned work environment; and in sexual harassment or solicitation or advances. In answer to Question A29, asking why she believed that she was harassed in the workplace, the applicant answered “Terrance McCook touched me inappropriately and pulled my underwear out to dispense foreign objects such as ice.” In answer to Question A30, which asks why the applicant believed that she was discriminated against based on sexual orientation, the applicant answered “[d]ue to emails and homophobic remarks made by Terrance to myself and other staff.”

request to amend application

5A first hearing day for this Application is scheduled for August 4, 2017. By letter dated June 19, 2017, the applicant’s counsel advised the Tribunal that he had been retained to represent the applicant. By Request for Order During Proceedings (“RFOP”) filed July 12, 2017, the applicant sought to amend her Application to “add particulars to remedy the drafting deficiencies within the Application”, to replace the ground of gender identity with the ground of sexual orientation, and to add particulars to the remedies sought in the Application.

6The applicant made a number of new assertions in her RFOP which were previously not included in her Application. Some of them are in the nature of new allegations of harassment, discrimination or reprisal; others are in the nature of particulars to general allegations made in the Application; others are in the nature of replies to allegations made by the respondent in its Response; and others appear to point to evidence that the applicant expects to call at the hearing to make out her claims of discrimination, harassment and reprisal.

7The respondent opposed many of the new assertions made by the applicant and agreed to some of the amendments and particulars that it characterized as non-prejudicial.

Analysis and findings

8In 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.

9Having considered the factors set out above, I grant the applicant’s request to amend the Application in part.

Request to add ground of sexual orientation

10I grant the applicant’s request to replace the ground of gender identity with the ground of sexual orientation. Despite not ticking the box beside the ground of sexual orientation in her Application, the applicant clearly alleged discrimination on the basis of sexual orientation through her answers to Question A30 of the Application form. As noted above, in answer to Question A30, which asks why the applicant believed that she was discriminated against based on sexual orientation, the applicant answered “[d]ue to emails and homophobic remarks made by Terrance to myself and other staff.”

11The respondent cannot fairly claim to be surprised that the applicant is alleging discrimination based on sexual orientation, as the respondent itself denied discriminating against the applicant based on sexual orientation at para. 2 of its Response. For this reason, I grant the applicant’s request to replace the ground of gender identity with the ground of sexual orientation.

Additional allegations

12I do not find it appropriate at this late stage of proceedings to grant the applicant’s request to add any new allegations to her Application. The applicant filed her RFOP just three weeks before the hearing, after the parties had both filed their witness statements and hearing documents. However, I do consider it appropriate to permit the applicant to add particulars that are unlikely to cause any significant prejudice to the respondent. I also consider it appropriate to permit the applicant to include assertions that are in the nature of reply to allegations made by the respondent in its Response. Such assertions are not new allegations, they are instead responses to claims that the respondent made against the applicant in its Response. To permit the respondent to bring evidence to support such allegations against the applicant and not permit the applicant to respond to them would be unfair to the applicant. Finally, I also consider it appropriate to permit the applicant to refer to evidence she intends to call to make out her claims of discrimination. Such evidence is not appropriately characterized as new allegations, it is evidence to make out the allegations contained in the Application.

13For ease of reference, I refer below to the amended Application attached to the Applicant’s RFOP to indicate which amended paragraphs will be permitted and which will be struck out.

a. Paragraphs 1-15, 17, 28-30, 33-35 are permitted. Most of these amended paragraphs are agreed to by the respondent except for the addition of sexual orientation as a ground of discrimination. I permit the addition of that ground for the reasons set out above.

b. Paragraphs 16, 18 are not permitted as they raise whole new allegations not included in the Application.

c. Paragraphs 19-20 are permitted only insofar as they appear to respond to allegations made by the respondent against the applicant in subparas. 15(e) and (f) of the Response. They are not permitted as new allegations of discrimination, harassment or reprisal.

d. Paragraphs 21-22 are permitted as they refer to particulars of the allegedly homophobic remarks referred to by the applicant in Question A30 of her Application. I understand, as pointed out by the respondent, that the applicant did not provide particulars of the alleged homophobic remark(s) made by Mr. McCook in her Application. However, the respondent also did not request particulars of this allegation from the applicant.

e. Paragraph 23 is permitted insofar as it refers to evidence the applicant intends to rely upon to support her allegation that her sexual orientation was a factor in the respondent’s termination of her employment. It also appears that this may be one of the emails referred to by the applicant in her answer to Question 30 in the Application.

f. Paragraph 24 is permitted. One of the central claims in the Application is that the respondent terminated the applicant’s employment for discriminatory reasons under the false pretense that she had stolen a can of pineapple juice. The first part of para. 24 merely sets out evidence the applicant intends to call to establish that she paid for the can of pineapple juice.

g. Paragraphs 25 and 26 are permitted insofar as they respond to allegations the respondent made against the applicant in subpara. 15 (e) of the Response, which it stated that it specifically considered before terminating the applicant’s employment (para. 21). To permit the respondent to raise this allegation and not permit the applicant to respond to it would be unfair. Paragraphs 25-26 will not considered as new allegations but, instead, as a response to subpara. 15(e) of the Response.

h. Paragraph 27 is permitted except the sentence which refers to alleged discrimination against other employees. This Application concerns alleged discrimination against the applicant, not alleged discrimination against other employees who have not themselves filed an application against the respondent.

i. Paragraphs 31 and 32 are permitted but only insofar as they refer to evidence that the applicant intends to call to make out her claims of discrimination. These paragraphs will not considered to be new allegations of discrimination.

j. Paragraphs 34-35 are permitted as they set out the heads of damages that the applicant will be seeking in this case.

14I am not persuaded that any of the amendments I have permitted will cause significant prejudice to the respondent, as I have not permitted the addition of any new allegations not referred to in the Application. The respondent’s counsel noted that he had already conducted witness interviews with his witnesses. However, I do not anticipate that we will get to the respondent’s witnesses on the August 4, 2017 hearing day. Therefore, there will be ample time for the respondent to review any additional particulars with his witnesses.

15I am also not persuaded by the respondent’s claim that it will not be in a position to cross-examine the applicant on August 4, 2017, since it cannot put to her contrary evidence in accordance to the rule in Browne and Dunn. The respondent’s main concern appears to be with any contrary evidence from Mr. McCook, who is no longer employed by the respondent. I note that, in his witness statement, Mr. McCook denies making inappropriate comments to the applicant based on her sex, sexual orientation or any other prohibited ground of discrimination. Therefore, I am not persuaded that the respondent will be prejudiced if it has to cross-examine the applicant on August 4, 2017 without having a chance to speak to Mr. McCook. In addition, the rule in Browne and Dunn in this case would work to the applicant’s benefit as it would provide her with the opportunity to answer any contrary evidence expected from the respondent’s witnesses. In my view, any violation of the rule in Browne and Dunn can be remedied, if necessary, by permitting the applicant to give reply evidence at the end of the case. However, in my view, this is unlikely to be necessary in the circumstances of this case since Mr. McCook denies making any inappropriate remarks about the applicant’s sexual orientation.

orderS and direction

16For the reasons set out above, the applicant’s request to amend her Application is granted in part as set out in para. 13 above.