Ontario Human Rights Commission v. Motsewetscho, 2003 HRTO 5

IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;

AND IN THE MATTER OF the complaint by Jillian Morrison dated March 22, 2001; by Usila Antoine dated October 15, 2001; by Farida Vapiwalla dated May 17, 2001; by Lorraine McLean dated March 20, 2001; and by Shelly-Ann P. Duhaney dated November 23, 2001.

B E T W E E N :

Ontario Human Rights Commission

Commission

• and –

Jillian Morrison, Usila Antoine, Farida Vapiwalla, Lorraine McLean, Shelly-Ann P. Duhaney

Complainants

• and -

Dickson Motsewetscho (also known as Dick Motsewetsho, Dickson Mot, and Dr. Dickson Mots), carrying on business as Patrons Online, Patrons Online . com, Patrons Online.com, Patrons OnLine, Patrons On Line, Patrons Online.Com, Patrons OnLine.Com and/or Patrons ONLINE.COM

Respondent

interim DECISION

Adjudicator: Mary Ross Hendriks

Date: March 17, 2003

Citation: 2003 HRTO 5

Human Rights Tribunal of Ontario

400 University Avenue, 7th Floor

Toronto ON M7A 1T7

Phone (416) 314-0004 Fax: (416) 314-8743 Toll free 1-800-668-3946

TTY: (416) 314-2379 / 1-800-424-1168

appearances

Ontario Human Rights Commission ) Brian Smith, Counsel

INTRODUCTION

1These are the Tribunal’s Reasons and Order for its Interim Decision concerning the disposition of a motion brought by the Ontario Human Rights Commission (the “Commission”) for leave to amend the Complaints and to file an Amended Statement of Facts and Issues to correct certain misnomers, and for leave to amend the Complaint of Farida Vapiwalla to add the ground of reprisal.

2The Commission’s earlier request that Ms Hunte, formerly Ms Motsewetsho, be added as a party to this proceeding, has been previously adjourned, and was withdrawn at the hearing of this motion.

THE MOTION

3The Commission seeks an Order from the Tribunal as follows:

1. Leave to amend the Complaints to correct misnomers and properly name the Respondent “Dickson Motsewetsho (also known as Dick Motsewetsho, Dickson Mot, and Dr. Dickson Mots), carrying on business as Patrons Online, Patrons Online . com, Patrons Online.com, Patrons OnLine, Patrons On Line, Patrons Online.Com, Patrons OnLine.Com and/or Patrons ONLINE.COM”;

2. Leave to amend the Complaint of Farida Vapiwalla to add the ground of reprisal;

3. Leave to file an Amended Statement of Facts and Issues in the form attached as Schedule “A” to the Notice of Motion; and

4. Such further and other relief as the Tribunal deems just.

BACKGROUND TO THE HEARING OF THIS MOTION

4This motion was originally returnable on February 10, 2003. It was adjourned to February 25, 2003, and again to March 13, 2003, at the request of Catherine Hunte, whom the Commission had been seeking to add as a party. Ms Hunte retained counsel, Mr. Bury, who filed an affidavit that contained detailed evidence in support of the position that Ms Hunte was completely uninvolved in Mr. Motsewetsho’s business activities, and is not a proper party to the proceeding. On the basis of this evidence, Mr. Smith received instructions from the Commission to withdraw his request that Ms Hunte be added as a Respondent.

5Mr. Motsewetsho sent a letter to the Deputy Registrar of the Tribunal very late in the day on March 12, 2003, seeking an adjournment of the hearing of this motion, in order to retain counsel. Mr. Smith objected to this adjournment request, since Mr. Motsewetsho had repeatedly received notice of this motion and its previous adjournments. Also, he had been granted a previous adjournment from the Tribunal’s Initial Conference Call, in order to secure counsel. Further, the Deputy Registrar had spoken with Mr. Motsewetsho earlier, and he confirmed to her that he has been in receipt of the Tribunal’s correspondence.

6For these reasons, the Tribunal declined to adjourn the hearing of this motion for a third time, but did direct the Deputy Registrar to advise all the parties that a further conference call is scheduled for April 16, 2003. This one-month delay allows the Respondent further time to retain counsel, and to deliver pleadings prior to setting hearing dates on April 16th. Mr. Motsewetsho did not attend the hearing of this motion, despite being on notice of it from the Deputy Registrar and from the Commission.

DECISION

7The Commission’s motion to amend the Complaints and the Statement of Facts and Issues to correct misnomers is hereby granted. The Tribunal is satisfied based on the affidavit evidence before it that Mr. Motsewetsho, and the business entity he carries on as Patrons Online, are commonly known by several personal aliases and similar business names, that the Respondent has had full notice of this proceeding, and suffers no prejudice whatsoever from these minor amendments.

8The Complaint of Farida Vapiwalla is hereby amended to add the ground of reprisal, and the Statement of Facts and Issues is also amended as such. The Commission has satisfied the Tribunal that the allegations made by Ms Vapiwalla, if proven, are capable of supporting a finding of reprisal under section 8 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), and that the facts concerning the allegation of reprisal have been previously set out in Ms Vapiwalla’s Complaint and in the Commission’s Statement of Facts and Issues, dated December 12, 2002. Accordingly, the Respondent is not prejudiced by this amendment. This amendment delineates the issues at hand prior to the commencement of the hearing, which promotes the objectives of natural justice and fairness.

ORDER

9The Tribunal orders as follows:

(1) The Commission shall correct the misnomers and properly name the Respondent as “Dickson Motsewetsho (also known as Dick Motsewetsho, Dickson Mot, and Dr. Dickson Mots), carrying on business as Patrons Online, Patrons Online . com, Patrons Online.com, Patrons OnLine, Patrons On Line, Patrons Online.Com, Patrons OnLine.Com and/or Patrons ONLINE.COM”;

(2) The Commission shall amend the Complaint of Farida Vapiwalla to add the ground of reprisal;

(3) The Commission shall serve and file and Amended Statement of Facts and Issues in the form attached as Schedule “A” in its Motion Record by April 4, 2003; and

(4) All parties shall participate in a pre-hearing conference call on April 16, 2003 at 2:00 p.m. to set the dates for the hearing on the merits. The Deputy Registrar shall provide each party with the particulars of this conference call.