Jorge v. Canada Post Corporation

Jorge v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2021-08-06
Neutral citation
2021 CHRT 25
File number(s)
T2363/2219
Decision type
Ruling
Grounds
Disability
Family Status
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
25
Date:
August 6, 2021
File No.:
T2363/2219
Between:
Noella Jorge
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
Respondent
Ruling
Member:
Kathryn A. Raymond, Q.C.
Table of Contents
I. Overview 1
II. Background 1
III. Procedural Ruling for Motions 3
IV. Issue 1: Amendment of the Complaint 7
A. The Original Complaint v the Proposed Amendments 7
B. Ms. Jorge’s Position 10
(i) Overview 10
(ii) Ms. Jorge’s Legal Argument 10
C. Canada Post’s Position Respecting Proposed Amendments 11
(i) Overview & Further Organization of the Issues 11
(ii) Canada Post’s Legal Arguments About the Third Category 12
D. Ms. Jorge’s Reply 15
E. Commentary about Procedural Background at Commission & Tribunal Stage 17
F. Analysis 20
(i) Authority, Purpose & Discretion 20
(ii) Nexus 23
(iii) Prejudice 26
(iv) Delay 30
(v) Circumventing the Commission Process 30
(vi) Summary of Findings 31
V. Issue 2: Scope of the Complaint 32
A. Introduction 32
B. Framing the Issues 32
C. Identifying the Commission’s Decision 33
D. Canada Post’s Position 36
E. Ms. Jorge’s Position 38
F. The Commission’s Position 40
G. Canada Post’s Reply 42
H. Analysis 44
(i) Is There a Clear Decision by the Commissioners? 44
(ii) How Should Any Ambiguity Be Resolved? 45
(a) Overview 45
(b) The Content of the Commissioners’ Decision 46
i. Reference to the Investigation Report 46
ii. Reference to “The Merits” 49
(c) The Statutory Context 51
i. The Statutory Scheme 51
ii. Interconnected Issues 53
iii. Preliminary Nature of Any Decision by the Commission 53
(iii) Considering the History of the Complaint 54
(iv) Expressio unius est exclusio alterius 59
(v) Final Comments 59
VI. Issue 3: Whether Certain Allegations in Ms. Jorge’s Statement of Particulars Should be Struck 61
VII. Orders Granted 64
I. Overview
[1] Ms. Noella Jorge wishes to amend her complaint of discrimination pursuant to the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “Act”). Conversely, Canada Post asks the Tribunal to limit the scope of Ms. Jorge’s complaint and to exclude or strike certain allegations in the complaint so that they are not considered at the hearing. For the reasons that follow, Ms. Jorge is permitted to amend her complaint as directed below. Canada Post’s request to limit the scope of the complaint is denied. Certain other related requests by Canada Post are adjourned on the basis that they would be better addressed at the hearing.
II. Background
[2] The Complainant, Ms. Jorge, filed a complaint of discrimination against her former employer, the Respondent, Canada Post, with the Canadian Human Rights Commission (the “Commission”) in July 2013. When Ms. Jorge filed the original complaint, she was self-represented.
[3] Her complaint as filed (the “original complaint”) alleged that Canada Post discriminated against her based on family status and disability. The complaint alleged this occurred in the context of employment, including harassment, hate messages and equal wages, and in relation to the denial of goods, services, facilities or accommodation. The original complaint also alleged that Canada Post had retaliated against Ms. Jorge for having made a complaint or, on the facts of this case, because she indicated an intention to Canada Post to file a complaint with the Commission.
[4] Commission staff investigated the original complaint and made recommendations. The Board of the Commission (“the Commissioners”) reviewed the results and recommendations from that investigation and referred the complaint to this Tribunal in February 2019.
[5] On October 4, 2019, Ms. Jorge filed a Statement of Particulars with the Tribunal. The Tribunal’s Rules of Procedure (the “Rules”), specifically Rule 6(1)(a), require that a party’s Statement of Particulars include the material facts that the party intends to prove at the hearing. Ms. Jorge had the benefit of legal counsel to assist her when she filed her Statement of Particulars, as counsel began to represent her in March 2017. Ms. Jorge’s counsel submits that the Statement of Particulars that she filed provides the detail that is required by the Rules.
[6] Canada Post objected to the Statement of Particulars filed on behalf of Ms. Jorge, taking the position that some of its content fell outside the original complaint. Counsel for Ms. Jorge brought this motion to amend Ms. Jorge’s original complaint to resolve any issue in this regard before the hearing.
[7] Ms. Jorge’s motion asks for an order:
1) to amend the complaint to include additional facts and allegations against Canada Post that were specified in her Statement of Particulars; and,
2) that the Tribunal consider all matters raised in her Statement of Particulars in the adjudication of her complaint.
[8] The proposed amendments are attached to Ms. Jorge’s motion as Schedule “B”. Ms. Jorge says that the additional content primarily provides details respecting the allegations in the original complaint. The content includes corrected dates.
[9] The proposed content also includes the addition of an alleged pattern of retaliatory conduct, said to have continued after the complaint was filed in July 2013, until Ms. Jorge was allegedly forced to leave her employment in late 2013. As indicated above, the original complaint alleged retaliation at the time it was filed. Obviously, any basis for the retaliation allegation in the original complaint would have occurred before the complaint was filed.
[10] The Commission takes no position respecting Ms. Jorge’s motion for amendment.
[11] Canada Post not only opposes Ms. Jorge’s motion for amendment but has also filed its own cross-motion. In its cross-motion, Canada Post asks the Tribunal to issue four orders. These are:
1) an order limiting the scope of the complaint based on the decision of the Commissioners respecting the investigation;
2) an order excluding any existing retaliation allegations in the original complaint based on events that Ms. Jorge says occurred before she filed her complaint with the Commission;
3) an order dismissing Ms. Jorge’s claim for lost wages and pension arising from psychological injuries she alleges were caused by Canada Post and striking the corresponding allegations in Ms. Jorge’s Statement of Particulars; and,
4) an order striking other allegations of discrimination from Ms. Jorge’s Statement of Particulars because they pre-date the “starting date” of discrimination identified in the original complaint.
[12] Ms. Jorge asserts that the Tribunal should not predetermine any of these issues raised by Canada Post before a full hearing of the merits of the complaint. Having recorded this position, Ms. Jorge nonetheless offered submissions on the merits of Canada Post’s cross-motion, in the event the Tribunal chose to decide the merits of the cross-motion in advance of the hearing.
[13] As for its position, the Commission opposes the proposed limitation of the scope of the complaint based upon its own referral decision. The Commission takes no position respecting Canada Post’s request to strike the retaliation allegations in the original complaint that are said to have occurred before Ms. Jorge filed her complaint with the Commission. The Commission submits that the Tribunal has the jurisdiction to determine whether Canada Post caused Ms. Jorge to suffer psychological injuries and possesses the jurisdiction to award lost wages and pension arising from such injuries. Lastly, the Commission takes no position respecting Canada Post’s request for an order striking certain allegations from Ms. Jorge’s Statement of Particulars because they pre-date the starting date of discrimination identified in the original complaint.
III. Procedural Ruling for Motions
[14] The Tribunal has considered Ms. Jorge’s position that Canada Post’s cross-motion should not be ruled upon at this stage of the proceeding, before a full hearing of the merits of the complaint. The Tribunal has significant discretion respecting matters of procedure pursuant to section 50(3)(e) of the Act and Rules 1 and 3 of the Rules. The Tribunal has exercised its discretion and determined that the following process is the most fair and effective means to address the preliminary issues raised in this case.
[15] Ms. Jorge’s motion for amendment will be decided now. Canada Post’s cross-motion to limit the scope of the complaint will also be decided now. It is similar to Ms. Jorge’s motion to amend the original complaint.
[16] The Tribunal will also determine whether certain allegations in Ms. Jorge’s Statement of Particulars are to be struck because they pre-date the starting date of discrimination identified in the original complaint. This issue overlaps with Ms. Jorge’s desire to amend her complaint and Canada Post’s request to limit the scope of the complaint to what it submits has been decided by the Commission. In this regard, the content that Canada Post wishes to strike from Ms. Jorge’s Statement of Particulars is content that Ms. Jorge wishes to add to her amended complaint.
[17] Determining these issues as preliminary matters permits the parties to know the case they must meet so that they can prepare for the hearing. Of equal importance, the Tribunal sees no practical impediment to deciding these matters now. Resolution of the issues selected for advance determination requires the Tribunal to apply the law to evidence that is already available to the Tribunal. As well, most of the facts are not in dispute.
[18] Respecting the motion to amend, we have as evidence for this motion the original complaint, the Commission’s Investigation Report and a Reply Record that was filed by Ms. Jorge at the Commission stage. This Reply was a response to Canada Post’s Response to the complaint that was sent to the Commission. We also have other communications within the Reply Record that Ms. Jorge sent to the Commission.
[19] With respect to Canada Post’s objection to the scope of the complaint, there are two key documents in evidence. The first is the Commission’s letter to the Tribunal requesting an inquiry into the complaint of February 25, 2019. This document is the foundation of the Tribunal’s jurisdiction and is part of the Tribunal’s record of the proceeding. The second document is a decision by the Commissioners dated August 1, 2018 to refer this matter to the Tribunal. This decision was issued to the parties by letter of August 17, 2018 from the Commission. It was not issued to or provided to the Tribunal. This document is part of the record of decisions in the Commission’s proceedings at the pre-inquiry stage of this matter. This decision has now been provided to the Tribunal by Canada Post in support of its cross-motion. Therefore, the evidence the parties need to submit for consideration by the Tribunal to have the scope of the complaint determined is available to the Tribunal now.
[20] The Tribunal reaches a different conclusion with respect to Canada Post’s cross-motion to exclude retaliation allegations in the original complaint which would have allegedly occurred before the Complainant filed her complaint with the Commission. This aspect of Canada Post’s cross-motion amounts to a request for an order striking portions of Ms. Jorge’s original complaint before the case is heard and related content that is in her Statement of Particulars. Canada Post seeks to strike these allegations on the basis that retaliation for filing a discrimination complaint can only be found to occur after a complaint is filed. Its argument is based on the wording of section 14.1 of the Act, which states that it is a discriminatory practice “…for a person against whom a complaint has been filed…to retaliate….”
[21] In response, Ms. Jorge argues, in part, that the allegations regarding what occurred prior to her filing her original complaint can be characterized as discrimination rather than retaliation. She submits that this issue should be considered with access to the evidence at the hearing so that an assessment of the characterization of these allegations can be made in a full factual context.
[22] In the Tribunal’s view, aspects of an existing complaint should not be struck before a hearing on the merits, except in the clearest of cases. This is not one of those clearest of cases. There is a dispute over the appropriate characterization of certain alleged facts. Whether these facts are ultimately proven, and, whether, if proven, they are found to be retaliation or examples of discrimination or neither, the objection and Ms. Jorge’s response should not be determined on a theoretical basis, without the evidence and argument available together. At the conclusion of the hearing, the Tribunal will have the benefit of having heard the evidence and the parties will have an opportunity to finalize their submissions, based upon a completed evidentiary record. Canada Post may raise this issue again, at that time.
[23] I turn to the timing of Canada Post’s request for an order dismissing Ms. Jorge’s claim for lost wages and pension arising from psychological injuries allegedly caused by Canada Post and its request that the Tribunal strike the corresponding allegations in Ms. Jorge’s Statement of Particulars. As explained, Canada Post seeks a ruling that the Tribunal lacks jurisdiction to determine whether Canada Post caused Ms. Jorge to suffer psychological injuries. Based on this alleged lack of jurisdiction, Canada Post submits that the Tribunal has no jurisdiction to award lost wages and pension arising from such injuries. Canada Post submits that jurisdiction in this regard lies within the exclusive purview of the Workplace Safety and Insurance Board of Ontario (the “WSIB”). Specifically, Canada Post argues that Ms. Jorge’s claim for lost wages and pension is barred by the Government Employees Compensation Act, R.S.C. 1985, c. G-5 because, it says, that statute provides that the WSIB has exclusive jurisdiction to determine whether Ms. Jorge has a compensable workplace injury.
[24] This issue will not need to be decided unless Ms. Jorge provides sufficient evidence at the hearing to establish a prima facie case of discrimination and establishes on a balance of probabilities that she suffers from psychological injuries that were caused by Canada Post. The issue of whether the Tribunal is precluded from awarding lost wage and pension benefits by reason of Ms. Jorge’s alleged psychological injuries, the “sister issue”, will only need to be decided if these other matters are established. Any such findings should be made at a time when the parties and the Tribunal have had the benefit of having heard the evidence and the Tribunal has made the findings that underpin these issues.
[25] What is at issue now is whether Ms. Jorge can include allegations about psychological impacts upon her in her complaint and Statement of Particulars. Her original complaint includes references to “stress” and needing to take stress related leaves from work in describing the alleged effect of discrimination upon her. This type of allegation is included in many human rights complaints filed with the Tribunal. It is potentially relevant to the issue of remedy. It would be highly unfair to pre-emptively not permit those allegations to be made at this stage of the proceeding. Instead, all parties will have an opportunity to argue this issue completely at the hearing.
[26] For these reasons, this ruling will address these issues:
1) Whether Ms. Jorge should be permitted to amend her complaint with the addition of content and date corrections, as requested in Schedule “B” to her motion;
2) Whether Canada Post’s request to limit the scope of the complaint should be granted; and,
3) Whether certain allegations of discrimination in Ms. Jorge’s Statement of Particulars should be struck because they pre-date the starting date of discrimination identified in the original complaint.
IV. Issue 1: Amendment of the Complaint
A. The Original Complaint v the Proposed Amendments
[27] The complaint form provided by the Commission to complainants limits the narrative of events to three pages and divides that into areas that include a space for description of the alleged discrimination and a space to describe any negative effects alleged to be caused by the discrimination. As noted, Ms. Jorge was self-represented at the time she filed the complaint. At several points on the form, Ms. Jorge indicated that further details were available. For example, at page 5 of the complaint form, she wrote, “In order to keep this to 3 pages, and this would be lengthy, if you require more information on this, please contact me and I can provide much more information. I have copies of all my paystubs and the mess they have created is extremely hard to explain in writing.” She conveyed a similar message on the section of the form where she was asked to describe whether the allegedly discriminatory treatment had a negative effect on her and, if so, how she was affected. She also identified further alleged discriminatory practices in this section and repeated that she did not have enough room.
[28] The complaint form asks complainants to identify when the alleged discrimination started and when it ended. Ms. Jorge wrote in the space provided that the discrimination began in May 2012 and was ongoing. At the same time, the narrative description of the original complaint states that in early February 2012 Ms. Jorge developed a disability and that her employer began to harass her upon her return to work in April 2012 (at page 5 of the complaint form). Because of the references to both April and May start dates, it appeared there was likely a factual conflict within the original complaint about the start date of the alleged discrimination. One of the proposed amendments includes a statement that Ms. Jorge returned to work on April 27, 2012.
[29] For purposes of this motion, I will assume that the start date of the alleged discrimination was around the beginning of May, after Ms. Jorge returned to work on April 27, 2012. Complaints received by this Tribunal typically allege that discrimination occurred upon return from a medical leave. Accordingly, the third issue in this motion respecting allegations that may pre-date the starting date of discrimination has been decided on the basis that the starting date is approximately the beginning of May 2012.
[30] The original complaint is attached as Exhibit A to Ms. Jorge’s Affidavit in support of her motion and was summarized at page 69, para 2 of her counsel’s written submissions for the motion. Although it is a summary, the description of the complaint prepared by Ms. Jorge’s counsel accurately captures the core content of the original complaint as follows:
1) Jorge suffers from a disability, which impacted on her ability to perform her duties at the Canada Post Corporation in the manner in which they were previously performed;
2) After her return to work, her disability was not adequately accommodated;
3) As a result of her disabling conditions and Canada Post's response, Jorge was harassed by many Canada Post employees;
4) Jorge was separated from other employees and told to find new employment;
5) When an employee had written a critical letter to a supervisor regarding Jorge, the matter was "addressed" without any involvement from Jorge;
6) Jorge was adversely treated, both in respect of her entitlement to paid vacation and in the execution of a targeted audit of her performance;
7) Canada Post's actions and inactions related to her disabling conditions and medical leaves caused issues with her compensation;
8) Canada Post retaliated against Jorge as a result of her requests for accommodation and once its staff became aware that she had contacted the Commission. This retaliation included refusing to accommodate her family status by preventing her from driving her children to school in the mornings, and unwarranted disciplinary interviews and suspensions; and
9) Jorge had taken several periods of leave due to the impact of these events on her mental health.
[31] Ms. Jorge submits that the requested amendments in this motion, which are currently allegations in the Statement of Particulars, are all factually and legally connected to the original complaint. As summarized by her counsel at pages 72-73, paras 8 and 9 of her written submissions, the proposed amendments to the complaint consist of the following additions:
1) background information on Jorge's employment history, salary and benefits with Canada Post, and her family status;
2) the events that led Io Jorge taking a leave of absence in February 2012 due to her disability;
3) details regarding Jorge's disability, diagnosis, treatment and the impact on Jorge's ability to remain at work;
4) further details regarding Canada Post's failure to accommodate Jorge's disability;
5) further details regarding steps taken by Canada Post to discipline Jorge in retaliation for her requests for accommodation, failure to complete her route on time and for contacting the Commission and making the Complaint;
6) further details of the retaliatory harassment perpetrated by Jorge's coworkers and the failure of Canada Post to properly address the harassment of Jorge by her coworkers;
7) additional instances of Canada Post causing issues with Jorge's compensation;
8) further details regarding the impact of Canada Post's actions and inactions on Jorge's mental health.
[32] In the summary of the requested amendments, Ms. Jorge’s counsel also referenced new alleged facts said to arise after the complaint was filed in July 2013 including:
1) Canada Post's continued failure to accommodate Jorge's disability;
2) Canada Post's retaliation against Jorge for seeking accommodation and for filing the Complaint through revoking her accommodation for family status and escalating disciplinary measures, ultimately leading to a threat of an indefinite suspension;
3) how Jorge's health deteriorated requiring a medical leave of absence in November 2013 from which she did not return;
4) details of Jorge's disability payments received until November 2015 and her termination without pay in lieu of notice or severance in December 2017 as she remained totally disabled from working; and
5) how, as a result of her loss of income, Jorge has suffered extreme financial hardship, requiring her to withdraw from her pension and sell her home.
[33] Counsel for Ms. Jorge advised that the proposed amendments also correct several typographical errors respecting dates that were contained in the Complaint.
B. Ms. Jorge’s Position
(i) Overview
[34] Ms. Jorge submits that the Tribunal has a broad discretion to make procedural rulings in hearing a complaint in sections 48.9(1), 48.9(2), 49 and 50 of the Act and relies upon the Tribunal’s authority to address a motion to amend a complaint “as it sees fit” in Rule 3(2)(d) of the Rules. She argues that the proposed inclusion of additional content in the complaint, reflecting the content of her Statement of Particulars, would not result in injustice or prejudice Canada Post.
(ii) Ms. Jorge’s Legal Argument
[35] Counsel for Ms. Jorge relies upon what she describes as a well-settled point of law that a complaint is not a pleading and does not serve the purpose of a pleading in a civil case before the courts. (Pleadings in civil actions are usually expected to be filed with complete particulars.) She submits that after a complaint is filed, new details can and do arise during an investigation by the Commission. She argues that as long as the substance of the complaint is respected, a complainant can clarify and elaborate upon the initial allegations: Polhill v. Keeseekoowenin First Nation, 2017 CHRT 34 at para 13 (“Polhill”) and Casler v. Canadian National Railway, 2017 CHRT 6 at para 9 (“Casler”).
[36] Ms. Jorge’s counsel submits that the established test to be applied by the Tribunal to decide whether to permit amendment of a complaint is as follows:
1) whether the amendments are done for the purpose of determining the real questions of controversy between the parties;
2) whether the allowance would not result in an injustice between the parties that could not be cured. Such an injustice must amount to real and significant prejudice;
3) whether it would serve the interests of justice; and
4) that the proposed amendments cannot essentially amount to a new complaint. There must be a nexus, or link or law, between the amendments sought and the initial complaint.
[37] Counsel relies upon Parent v. Canadian Armed Forces, 2005 CHRT 37 at para 9 (“Parent CHRT”) in this regard.
[38] With respect to the amendments that allege retaliation by Canada Post, counsel for Ms. Jorge submits that there are a number of Tribunal decisions where it has been held that complainants should not be required to advance allegations of retaliation by way of a separate proceeding from the complaint as this would be “impractical, inefficient and unfair”. She relies upon Simon v. Abegweit First Nation, 2018 CHRT 31 as an example of such a decision.
C. Canada Post’s Position Respecting Proposed Amendments
(i) Overview & Further Organization of the Issues
[39] Counsel for Canada Post argues that Ms. Jorge is trying to add 31 new allegations to the original complaint, to the effect that Ms. Jorge is trying to redo her complaint. In support of its arguments, Canada Post organized the proposed amendments into three different categories.
[40] In the first category, Canada Post says that 13 proposed amendments appear to provide background or context to the complaint. Canada Post indicates that it does not oppose the addition of this content to the complaint if it is solely for the purpose of background.
[41] Ms. Jorge agrees that much of these specific amendments provide context for the complaint. However, she does not agree to an unspecified restriction upon the use of these amendments as “background” or “context”.
[42] In the Tribunal’s view, these 13 amendments consist of both background and allegations. As the parties did not reach agreement on their treatment, they are included in this ruling.
[43] In a second category, counsel for Canada Post objects to the addition to the complaint of three allegations because the allegations indicate that Canada Post’s conduct caused Ms. Jorge’s psychological injuries, which allegedly resulted in lost wages and pension. As explained above, Canada Post asks in its cross-motion that corresponding allegations in Ms. Jorge’s Statement of Particulars be struck in advance of the hearing.
[44] As directed above, this issue will be determined, if necessary, at the hearing. However, the content involves the proposed addition of three allegations to the complaint and, therefore, involves proposed amendments to the complaint. The issue of whether these allegations can form part of the complaint are included in this ruling.
[45] Canada Post did not provide additional submissions respecting the merits of including the three amendments respecting alleged psychological injuries in the complaint.
[46] In the third category, Canada Post objects to a group of 15 proposed amendments to the complaint and to their inclusion in Ms. Jorge’s Statement of Particulars for these reasons:
1) undue delay by Ms. Jorge and prejudice to Canada Post if the amendments are permitted;
2) the additional allegations are not within the scope of the referral of the complaint by the Commission to the Tribunal;
3) in the alternative, the addition of some of these allegations would amount to a new complaint;
4) in the further alternative, Ms. Jorge should not be allowed to add allegations regarding alleged retaliatory conduct that occurred before the complaint was filed.
[47] As can be seen, there is significant overlap between Canada Post’s objections to the proposed amendments and its cross-motion.
(ii) Canada Post’s Legal Arguments About the Third Category
[48] On the issue of delay, counsel for Canada Post highlights that the amendments are being sought long after the events of the complaint. Counsel submits that Ms. Jorge did not add to the allegations in her complaint during the three year period between when the complaint was filed with the Commission and when it was referred by the Commission for investigation, nor did Ms. Jorge ask to amend her complaint during the investigation itself, which took about one and a half years, although she was interviewed by the Commission investigator.
[49] Ms. Jorge retained legal counsel in March 2017, prior to the issuance of the Commission’s Investigation Report on May 8, 2018. Canada Post’s counsel points out that Ms. Jorge filed a response to the Investigation Report with the assistance of counsel and did not identify the need to add allegations to the complaint.
[50] Counsel for Canada Post says that, once the complaint was referred to the Tribunal for inquiry on August 17, 2018, it took Ms. Jorge over thirteen months to bring the allegations that are now requested amendments to the Tribunal’s attention, which Ms. Jorge did by providing her Statement of Particulars with this content. Counsel submits that this delay alone is reason to deny the request for amendment.
[51] Canada Post relies upon the decision of Canada (Attorney General) v. Parent, 2006 FC 1313 at para 40 (“Parent FC”) where the Federal Court made it clear that an “...amendment must not be granted if it results in a prejudice to the other party.” In this regard, Canada Post submits that the 6-7 year delay in bringing forward these new allegations has prejudiced its ability to defend itself at a hearing because it did not have the ability to preserve the evidence it needs for the hearing. Canada Post says that all the allegations Ms. Jorge wishes to add to her complaint involve conversations or conduct that occurred in 2012 or 2013. Canada Post argues that witnesses’ memories have faded and asserts that documents have not been maintained. Canada Post submits that it is “highly unlikely that the alleged wrongdoers and witnesses will be able to recall the details and circumstances of conversations and conduct that occurred so many years ago” (Respondent’s Brief, para 20). Canada Post stresses that this information is vital to its ability to defend itself against the complaint. Because of the delay and resulting prejudice, Canada Post says that Ms. Jorge should not be able to add allegations to her complaint, nor should the same allegations in her Statement of Particulars be considered by the Tribunal at the hearing.
[52] In the alternative, Canada Post submits that the allegations in category three do not fall within the two issues that the Commission referred to the Tribunal for inquiry. As noted above, this argument will be addressed in the context of Canada Post’s cross-motion.
[53] Canada Post further submits that some of the new allegations amount to a new complaint and should not be allowed for that reason. In this regard, it points to two key decisions, Gaucher v. Canadian Armed Forces, 2005 CHRT 1 (“Gaucher”) and Tabor v. Millbrook First Nation, 2013 CHRT 9 (“Tabor”). In Gaucher, at para 11, the Tribunal decided that “[a]s long as the substance of the original complaint is respected, I do not see why the Complainant and the Commission should not be allowed to clarify and elaborate upon the initial allegations before the matter goes to a hearing.” In Tabor, at para 5, the Tribunal held that “an amendment cannot introduce a substantially new complaint, as this would bypass the referral process mandated by the Act.” Canada Post asserts that Ms. Jorge is not simply clarifying her complaint. Canada Post argues that Ms. Jorge is trying to file a new complaint and is describing the new content as an amendment to be able to do so.
[54] Canada Post submits that everything (beyond additional background) that Ms. Jorge is trying to add to her complaint is a new instance of discrimination, harassment or retaliation. The only “nexus” with the original complaint is disability and this is not enough, it argues, to form a “nexus” with the original complaint. Canada Post submits that the term “nexus” has been interpreted as requiring something more than this in the relevant case law.
[55] Canada Post also submits that Ms. Jorge is trying to circumvent the process under the Act which requires that the Commission investigate complaints that are filed with it.
[56] Canada Post provided three examples of allegations within the proposed amendments that it believes are new complaints:
1) Ms. Jorge wishes to add other instances of being moved to different areas within the workplace by Canada Post, allegedly for discriminatory or retaliatory reasons;
2) Ms. Jorge wishes to add to her allegations that she was instructed to complete her delivery route regardless of the restrictions related to her disability; and,
3) Ms. Jorge wishes to add new allegations of harassment by her co-workers.
[57] Canada Post further submits that 10 of the 15 allegations in the third category concern alleged retaliation over matters that occurred prior to Ms. Jorge filing her complaint. Canada Post relies on its cross-motion where it objects to any allegations of retaliation prior to the filing of the complaint. It has been decided not to determine this issue before the hearing. However, these 10 allegations are being included in this ruling respecting the requested amendments because they form part of the proposed amendments.
D. Ms. Jorge’s Reply
[58] Counsel for Ms. Jorge denies that the content of the proposed amendments was first provided in Ms. Jorge’s Statement of Particulars. Counsel says that most of this content was referenced in the original complaint itself. Counsel says that other content was contained in a Reply filed by Ms. Jorge that responded to a Response filed by Canada Post when the complaint was being considered by the Commission. As indicated, a copy of this Reply to Canada Post’s Response to the complaint (when the matter was before the Commission) was filed with Ms. Jorge’s Reply in support of her motion for amendment.
[59] With respect to Canada Post’s assertions of prejudice related to its alleged inability to preserve evidence, its non-retention of documents and the fading memories of witnesses, counsel for Ms. Jorge points out that the claim of prejudice is not supported by any evidence.
[60] Counsel submits that in the Parent FC case, upon which Canada Post relies, the Tribunal did not accept that the passage of time, even over a prolonged period, meant that amendments to the complaint would cause substantial prejudice (at para 11). As well, she refers to the Casler decision, at para 37, where there was a 10-year delay bringing forward allegations over matters that had occurred 16 years earlier. In that case a witness was deceased. Another witness’s whereabouts were unknown. The respondent in Casler argued that evidence and documents may have been lost. Counsel for Ms. Jorge submits that, nonetheless, the Tribunal permitted the amendments because the respondent had not provided proof of real and substantial prejudice.
[61] Ms. Jorge’s counsel further submits on the basis of Parent CHRT that it is not relevant if the Commission did not investigate every single allegation in the amendments to the complaint because Canada Post will have an opportunity to make those arguments to the Tribunal at the hearing.
[62] Ms. Jorge disputes that the requested amendments amount to a new complaint. Her counsel submits that, in any event, amendments can go beyond the limited approach of “clarifying” and “elaborating” a complaint as argued by Canada Post. Counsel says amendments can introduce new allegations of discrimination, harassment, and retaliation. She refers to the Tabor decision, at paras 10 and 15, as an example of a case where the Tribunal permitted amendments that introduced additional retaliation allegations.
[63] Counsel for Ms. Jorge submits that the other decisions Ms. Jorge relies upon are examples of allowing new content. Regarding the Polhill decision, she submits that, at para 10 and paras 24-37, the Tribunal permitted amendments that allowed the introduction of new facts, with the exception of allegations involving the conduct of the RCMP. She argues that in Casler, at paras 27-46, the complainant was permitted to add new facts on the basis that the parties were the same, the discriminatory grounds were the same, and the alleged discriminatory practices were the same.
[64] Ms. Jorge also relies upon AA v. Canadian Armed Forces, 2019 CHRT 33 at paras 53-77, where the Tribunal allowed the addition of a new allegation that the complainant suffered discrimination in relation to his mental health. The Tribunal found that the amendments had a nexus with the complaint as it was originally filed. Counsel for Ms. Jorge highlights that, at para 65, the Tribunal held that ongoing failures to accommodate are “intrinsic parts of the narrative as a whole” and should be allowed.
[65] Ms. Jorge submits the following:
1) That one of the allegations that Ms. Jorge had been moved to another area of the workplace occurred after the original complaint was filed and, therefore, could not have been included in the original complaint;
2) That two other instances have a general and specific nexus to the original complaint because the original complaint generally alleged harassment within the workplace and specifically referred to Ms. Jorge being moved on a different occasion;
3) That three allegations that Ms. Jorge had been expected to complete her route despite her functional limitations had a nexus to the original complaint because it states that she was told that the help she would receive would be limited and temporary; as well, she asserted in the complaint that there were other issues of Canada Post failing to accommodate her;
4) That other amendments regarding co-worker harassment and bullying were directly relevant to the complaint because in her complaint Ms. Jorge stated that she was treated like she had “a contagious disease” and that there were a number of incidences of harassment.
[66] Ms. Jorge’s counsel attached a chart listing the amendments Ms. Jorge is requesting and the connections or alleged nexus to the original complaint or to the Reply filed at the Commission stage, as the case may be, as Schedule B to her Reply to this motion.
E. Commentary about Procedural Background at Commission & Tribunal Stage
[67] Before proceeding with any analysis of the issues, it is important to accurately set the stage for this motion by providing context for the complaint form and highlighting the procedural differences at the Commission and Tribunal stage.
[68] The complaint form provides an overview of the complaint. The space for narrative is limited. Complainants may not expect the complaint form to be treated as a complete recitation of an extended series of perceived discrimination, given the limitation of space for content. Depending on the amount of information involved, the facts or allegations may be summarized. Further, these forms are often completed by self-represented individuals who may not have legal expertise.
[69] The use made of a complaint form is key. The complaint form is not a pleading. This is a well-settled point of law. However, it seems from the case law that there is a tendency for some respondents to continue to characterize it as a pleading. In this regard, some motions to amend a complaint are opposed by respondents urging a strict interpretation of the wording of the complaint form. However, the complaint form is not the kind of document that is intended to be strictly and n