HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Andria M. Davis Complainant

-and-

1041433 Ontario Limited o/a Trust Flooring Group and Ken McAulay Respondents

INTERIM DECISION

Adjudicator: Mary Ross Hendriks

Date: January 6th, 2005

Citation: 2005 HRTO 1

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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Cathy Pike and Nina Gandhi, ) Counsel

Andria M. Davis, Complainant ) On her own behalf

) Counsel

1041433 Ontario Limited, o/a Trust Flooring Group, ) Barbara Humphrey, Counsel Corporate Respondent )

Ken McAulay, Personal Respondent ) No appearance

INTRODUCTION

1The Complaint before the Human Rights Tribunal of Ontario (the “Tribunal”), dated October 5, 2001 and referred to the Tribunal on August 8, 2003, involves a person who alleges that her right to equal treatment with respect to employment without discrimination because of handicap, now disability, has been infringed by the Respondents. In particular, she alleges that the Respondents failed to accommodate her sudden disability caused by a motor vehicle accident, despite production of a doctor’s note, and terminated her employment when she was unable to return to work when they wanted her to do so.

2The Corporate Respondent submits that it made an “honest error” when it concluded that the Complainant had unjustifiably withdrawn her services, which resulted in the act that it admits infringed her rights under the Human Rights Code (the “Code”), being her termination. The Corporate Respondent maintains, however, that the Complainant failed to discharge her obligations as an employee seeking accommodation. In any event, the Corporate Respondent’s position is that the only issue before the Tribunal is the quantum of damages, and submits that the Complainant was only its employee for a short period of time.

3The Personal Respondent has failed to provide his pleading, make disclosure to the other parties, or participate in the pre-hearing conference call that was held on March 19, 2004. The Tribunal is cognizant of the fact that the Personal Respondent does not have a telephone. In light of this, the Tribunal went to the extraordinary measure of sending its correspondence of March 19, 2004, which confirmed the matters determined at the pre-hearing conference call including the scheduled hearing dates of September 20-23, 2004, to the Personal Respondent by Canada Post’s “track a package.” The Personal Respondent has himself signed for the delivery of this correspondence and the Tribunal is satisfied that he is on full notice of the proceedings herein.

4On September 10, 2004, counsel for the Commission advised the Tribunal of its settlement with the Corporate Respondent, and served and filed a notice of motion in respect of its withdrawal from participation at the hearing on the merits.

5On September 14, 2004, the Complainant requested that the hearing on the merits be adjourned, due to her concern for family members as a result of “Hurricane Ivan.”

6On September 15, 2004, the Tribunal convened a conference call for all parties, to deal with the Commission’s motion to withdraw, and Ms Davis’ motion to adjourn the hearing dates. This call took place on September 17, 2004.

7During the September 17, 2004 conference call, the Tribunal directed the Commission to file an affidavit in support of its motion record, and asked it to set out how the Commission has dealt with the transition issues involved in order to prevent an abuse of process. The Tribunal further directed counsel for the Commission to appear before it on October 20, 2004, to make submissions at the hearing of this motion. The Tribunal granted Ms Davis’ motion seeking an adjournment of the hearing on the merits, urged her to obtain her own legal counsel, and asked her to bring her counsel with her on October 20, 2004, to ensure that he or she is satisfied that there are no outstanding transitional issues with respect to the Commission. The Personal Respondent was sent a copy of the letter setting up this conference call by courier, urging him to participate, but he failed to respond. Counsel for the Corporate Respondent advised the Tribunal that she has agreed not to seek costs from the Commission “under any scenario.” The Registrar sent all the parties a letter on September 20, 2004 confirming these directions.

MOTIONS

8The Commission brought a motion respecting its withdrawal from participation in the hearing on the merits; and

9The Complainant brought a motion seeking to amend her Complaint to add the grounds of race and racial harassment.

10Both motions were contested. The motion brought by the Commission to withdraw was contested by the Complainant, and consented to by the Corporate Respondent. The motion brought by the Complainant to amend her Complaint was contested by the Corporate Respondent, and no position was taken by the Commission. The Personal Respondent did not participate.

ISSUES

11The key issues before the Tribunal are as follows:

(1) Does the Commission require the approval of the Tribunal to withdraw from active participation in a hearing?

(2) Has there been an abuse of process in this matter that has prejudiced the Complainant?

(3) If the Commission can withdraw, are there any transitional issues remaining?

(4) Are the new allegations of the Complainant sufficient to support the proposed amendments to her Complaint?

(5) As a matter of natural justice and fairness, is amending the Complaint warranted under the circumstances?

DECISION

12The motion brought by the Commission to withdraw from active participation in the hearing is granted. The motion brought by the Complainant to amend her Complaint to add new grounds of discrimination based on race and racial harassment in employment is denied.

FACTS

The Commission’s Motion to Withdraw

13The Commission brought its motion to withdraw and filed an affidavit sworn in support of that motion, dated September 27, 2004. In this affidavit, the Commission attached copies of correspondence that demonstrate that it has served and filed pleadings, made disclosure, provided additional disclosure, and submit that the Complainant and Corporate Respondent have indicated that they are satisfied with the disclosure made. During oral submissions, counsel for the Commission reviewed the history of the matter, and maintained that there are no further transitional issues for it to consider and that it can withdraw.

14During oral submissions, Ms Pike argued that for reasons of jurisdiction and public policy, the Tribunal cannot entertain a motion to require the Commission to retain active carriage of a file, and alternatively, that the Tribunal cannot hear the evidence necessary to make such a determination.

15Counsel for the Commission argued that three key principles are at play in this motion:

(1) the Commission can withdraw from active participation, based on the Court of Appeal’s decision in Tilberg v. McKenzie Forest Products Inc. (2000), 2000 CanLII 5702 (ON CA), 48 O.R. (3d) 150, leave to appeal refused (2000), 264 N.R. 396 (note);

(2) a complainant can continue his or her hearing without the Commission, based on Tilberg, supra; and

(3) the Commission cannot be forced to retain active carriage of a case, but can be required to take additional steps as are necessary for the transition of the case back to the complainant alone, as per Forde v. Artisan Screen Print Ltd. (2001), 2001 CanLII 26226 (ON HRT), 40 C.H.R.R. D/272 (Ont. Bd. Inq.).

16Thus, Commission counsel argued that the Tribunal is unable to grant the remedy that the Complainant seeks, nor should the Tribunal review settlement discussions because of public policy concerns. The Commission submits that the Tribunal only has the jurisdiction to make orders to stop an abuse of process from occurring, which could consist of ordering an adjournment or requiring the Commission to file pleadings, for example.

17Commission counsel further argued that it must maintain its separate party status, despite its role on behalf of complainants, and that it is entitled to pursue both. Commission counsel maintains that, “one should not be ransomed or shackled to the other,” for fear that the Commission will apply too restrictive a test when deciding which files it wishes to refer to the Tribunal for a hearing.

18Commission counsel submits that the notion of the Commission withdrawing is not unprecedented, and that even before the Tilberg, supra, decision, the Commission decided to take no further part in another case where the Commission was of the view that it had fulfilled its public interest role, see: Richards v Waisglass (1994), 1994 CanLII 18427 (ON HRT), 24 C.H.R.R. D/51 (Ont. Bd. Inq.), para. 3. Commission counsel maintains that absent any evidence of an abuse of process, the Tribunal cannot entertain the evidence, and that to do so, would taint it with that knowledge, see: Burney v. University of Toronto (1995), 1995 CanLII 18156 (ON HRT), 23 C.H.R.R. D/90 (Ont. Bd. Inq.), at para. 25. Further, Commission counsel said that her job is not to detract from the Complainant’s case, since she has the right to continue. While the Tribunal has a role to play in making orders to prevent an abuse of process, the Commission submits that the Tribunal does not need to hear about the adequacy of a rejected settlement offer.

19Once its public interest mandate has been satisfied, counsel for the Commission argued that it is not unreasonable for the Commission to withdraw. The Commission asserts that it has the right not to waste its resources. It maintains that it should be left to the Commission’s discretion to determine if the public interest remedy has been satisfied, since issues of privilege are involved. The only way to know if the settlement was reasonable is to hear the case on the merits. Counsel argues that while the Commission cannot disclose private offers made, in many of these cases the Commission can announce the public interest remedies made. The Tribunal’s remedial jurisdiction is not limited to the public interest remedies that the Commission achieves in a settlement.

20The Complainant opposed the Commission’s motion to withdraw. At the outset of her remarks, she thanked the Commission for five things: diligently responding to her original application of Complaint; investigating the matter and gathering the evidence; making a good, analytical and non-judgmental decision whether to refer it to the Tribunal; for responding promptly to her telephone calls, meeting with her in a timely manner, and for being helpful in providing information about the litigation process; and she thanked the Commission for reaching a settlement that it feels was fair, just and in the interests of the public. However, she added that she felt the settlement reached was not fair or just, for two reasons. First, the amount was low, and secondly, she did not like the conditions attached to it.

21The Complainant argues that in order to “fight for human rights and civil rights,” it is necessary to “win unconditionally,” with “no restrictions attached.” She submits that since the Commission began the investigation and referred the matter to the Tribunal, it should ask itself, “why start a journey and not proceed with it until the end.” She believes that the Commission lost interest in her case, contrary to the spirit of the Code, as set out in its Preamble. She added that, “the settlement didn’t involve me…it was only after the fact…information was floating about…” She felt that it was important to “make decisions together, to do things together.”

22Counsel for the Corporate Respondent supported the Commission’s motion. In fact, she submitted that her client “clearly breached” the Code, as acknowledged in her pleading, and while she maintains that the failure to discharge the duty to accommodate lies with both the Respondents and the Complainant, she said that “the only issue here is remedy.”

23Counsel for the Corporate Respondent said that counsel for the Commission had been in communication with the Complainant regularly about settlement talks, and described the Complainant as “inconsistent in her dealings.” Moreover, counsel for the Corporate Respondent said that the release was a standard release, and contained no special restrictions. She added that the Complainant’s not liking the terms of a proposed settlement does not in any way represent an abuse of process and that her motion should be dismissed.

24At this juncture, the Complainant agreed with counsel for the Corporate Respondent that she had in fact been in communication with Commission counsel in August and September, 2004, with respect to the settlement discussions. Counsel for the Commission also ruefully confirmed that this evidence was true, but said that she regretted that the Tribunal had to hear it.

The Complainant’s Motion to Amend the Complaint

25The Complainant filed a motion record dated September 30, 2004, which she prepared herself, and which attached copies of her correspondence dated March 25, 2004. It appears that she had sent copies of these letters to Commission counsel on March 25, 2004. The Complainant filed the motion record in support of her motion to amend her Complaint to add race and racial harassment as grounds.

26Two of the three attachments to her motion record are letters dated March 24, 2004, addressed to the Tribunal. The transmission verification report attached is dated 01/01/1994. The first letter, set out verbatim, provides as follows:

March 24, 2004

HUMAN RIGHTS TRIBUNAL OF ONTARIO 400 UNIVERSITY AVE. 7th FLOR TORONTO, ONTARIO M7A 1T7

Dear Ms. M. Hendriks:

RE: Andria Davis v. 1041433 Ontario limited o/a Trust Flooring Group et al. File No. HR-0540-03

SUBJECT: Motion___________________________________________________

Please note this is my filing of a notice of motion, in regards to Mr. Ken McAulay races and discriminatory behavior as formally outlined to Counsel, (Nina Gandhi and Cathy Pike). Please find enclosed an attachment of such motion. Thank You.

Yours truly,

Andria Davis Complainant

Enclosure

cc. Commission (Counsel, Ms. N. Gandhi & Ms. C. Pike) Stewart Turk Barbara Humphrey Ken McAulay

27The second letter, dated March 24, 2004, set out verbatim, and identified in the top right corner as being “Page 2”, provides as follows:

March 24, 2004

Human Rights Tribunal of Ontario 400 University Ave 7th Floor Toronto Ontario M7A 1T7

Dear Ms. M. Hendriks

RE: Andria Davis v. 1041433 Ontario Limited o/a Trust Flooring Group et al., File No. HR-0540-03_________________________________________________

Mr. Ken McAulay had discriminated against my financée and I on several occasions. The first occasion, Mr McAulay had past the remark that he can’t believe that Andria has a white man for a boyfriend and that he looks so old. He said black and white should never mix and he would never date a black woman. He said this remark to Angie Naggy and her reply was different strokes for different fokes. I heard this remark when passing by his office.

The second occasion, a co-worker told me, Ken mentioned when he saw my fiancée, he said, “The Oreo-man is here”.

Sincerely,

Andria Davis Complainant

28The third attachment to her motion record is a letter dated March 31, 2004, also set out verbatim. The transmission verification report attached to it is dated 01/07/1994. It provides as follows:

March 31, 2004

Human Rights Tribunal of Ontario 400 University Avenue 7th Floor Toronto, Ontario M7A 1T7

Dear Ms. M. Hendriks:

RE: Andria Davis v. 1041433 Ontario Limited o/a Trust Flooring Group et al., File No. HR-0540-03________________________________________________

I wish to bring a notice of motion alleging discrimination with respect to employment on the basis of racial discrimination, harassment, and handicap (now disability). This constitutes part of the reason, which I was terminated, by the personal and corporate respondent. I intend to rely on the attached statement.

Yours truly,

Andria Davis Complainant

Enclosure

cc. Commission (Counsel, Ms. N. Gandhi & Ms. C. Pike) Stewart Turk Barbara Humphrey Ken McAulay

29During her submissions, the Complainant said that the racial remarks made were a form of emotional abuse. She said that she had “tried to overlook it,” and “put up with” the remarks, but that these remarks had hurt her dignity, pride and self-respect.

30The Complainant said that she delayed in raising the issue of the alleged racial harassment because she did not want to involve her former colleagues who were still employed with the Corporate Respondent at the time she made her Complaint.

31The Tribunal advised the Complainant that her correspondence seeking an amendment to her Complaint that was addressed to the Tribunal, as set out in full in paragraphs 26-28, had not been filed in March, 2004, and that the Tribunal’s Hearings Officer had confirmed that fact. Counsel for the Corporate Respondent stated that she did not receive these letters either. Counsel for the Commission advised the Tribunal that the Commission had in fact received these letters from the Complainant directed to the Tribunal. No further explanation was given by Commission counsel nor by the Complainant for the failure to serve and file these letters seeking an amendment to the Complaint.

32At this juncture, the Tribunal advised all the parties that since the motion to amend the Complaint was never received by the Tribunal or the Corporate Respondent, that the Tribunal would consider this motion to have been brought forward now, rather than in March, 2004.

33The Tribunal asked the Complainant if she had ever communicated her allegation about race to anyone else in the past, prior to bringing this motion. She said she had not told the investigation officer at the Commission, and that she did not raise it in her witness statements. She did not want to reveal her sources because she said she was afraid for their jobs. She did not hear the remark allegedly made by the Personal Respondent about her fiancé herself, but was told about it by another person, so she added, “I don’t know it for a fact.” She said that the Personal Respondent had had “other racial encounters,” that did not pertain to her.

34Counsel for the Corporate Respondent argued that the Complainant’s submissions support its position that this motion should be dismissed, because she had said that she is not prepared to call the evidence she has and that the unnamed witness who allegedly heard the remark would not support her anyway. Moreover, the other individual’s issues with the Personal Respondent are not part of this hearing.

35Counsel for the Corporate Respondent also argued that the current Complaint does not contain any allegations that support an amendment to include race as a ground. The new factual allegations in support of this motion were first raised with the Commission about nine months after the termination of the Complainant, which is beyond the six-month statutory limit, and more importantly, the Respondents never had any notification of this issue. The first notice that the Corporate Respondent had of this issue was during the conference call held on September 17, 2004, leading up to these motions. Since no one can reach the Personal Respondent, and the three comments allegedly made are all attributable to him, it is severely prejudicial to the Corporate Respondent to allow this amendment to the Complaint where they are unable to respond due to the lack of evidence.

36Counsel for the Corporate Respondent submitted that the three comments now attributed to the Personal Respondent, while certainly undesirable, are unlikely to support a prima facie case of racial discrimination, and are unlikely to support a finding of a poisoned workplace, at law, in any event.

ANALYSIS

The Commission’s Motion to Withdraw

37The issue of the Commission’s withdrawal from active participation in a case is centred on the matter of jurisdiction, but also raises a number of other serious matters that require careful consideration.

38The Tribunal’s Rules of Practice, dated July 2004, certainly contemplate that the Commission is a party to the proceedings before it. Rule 15 provides as follows:

PARTIES

15. The parties to a proceeding before the Tribunal are:

(a) the Commission;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right; and

(d) any person added by the panel under clause 39(2)(d) or 39(2)(e) of the Code.

39The wording of Rule 15 mirrors the wording of the statute itself. Section 39(2) of the Code sets out the parties, as follows:

(2) Parties – The parties to a proceeding before the Tribunal are,

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the Tribunal to have infringed the right;

(e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 5(2) or of alleged conduct under section 7, any person who, in the opinion of the Tribunal, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct. [emphasis added]

40The Tribunal’s statutory obligation to hold hearings is in fact premised on complaints being referred to it by the Commission, as per ss.36(1) of the Code. The Tribunal has no statutory authority to accept complaints directly, since the Code delegates the responsibility “for the administration of this Act” to the Commission, which in turn, in responsible to the Minister, as per ss.27(2) of the Code. Thus, complaints are made by the public to the Commission, as per ss.32(1), or at the Commission’s own initiative, as per ss.32(2). The investigation of complaints is up to the Commission, as per s.33, which provides it with wide powers to enter dwellings and compel production of documents, including the power to ask a justice of the peace to issue it a search warrant. If the Commission exercises its discretionary power under s.34 and decides not to deal with a complaint, that is an exercise of its own statutory power of decision-making, and is subject to judicial review.

41Once the Commission has referred the matter to the Tribunal, the Tribunal has jurisdiction over the matter and a statutory mandate to conduct a hearing as a trial de novo. At this juncture, ss.39(2) contemplates that “the parties to a proceeding before the Tribunal” includes “the Commission, which shall have carriage of the complaint,” which is listed separately from “the complainant.” Thus, the statutory scheme separates the person who alleges that his or her rights have been violated, from the complaint itself, since the right to be free from discrimination is protected by the statute, and the enforcement of those rights has been delegated to the Commission.

42This raises an interesting legal question: can the Commission, by withdrawing from active participation in the hearing on the merits, effectively sub-delegate its statutory responsibility for carriage of the complaint, or public lis, back to the private complainant? Can a complainant be expected to lead evidence as effectively as the Commission would in order to support the complaint? Can a complainant be expected to find, fund and furnish the Tribunal with expert evidence on complex issues, for example, so that the Tribunal can fully assess whether or not a legal right has been violated? From a practical as well as a legal perspective, would expecting a member of the public to be able to finesse such complexities on his or her own be an improper sub-delegation of one of the Commission’s statutory functions, even if there has not been any abuse of process within the meaning of ss.23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (the “SPPA”)? In this instance, can this particular Complainant’s objection to the Commission’s motion to withdraw from active participation in the hearing ever be sustained?

43The question posed above about what constitutes an appropriate sub-delegation of statutory power vis-à-vis “carriage of the complaint” when before the Tribunal is much more rhetorical than real at this juncture in time. The Court of Appeal has already spoken, when it held in Tilberg, supra, at para. 42:

In my view, it is not unreasonable for the Commission to withdraw from participating in the hearing before the Board of Inquiry when its public interest mandate has been satisfied.

44Moreover, the Court of Appeal added, at para. 49, that “carriage of the complaint” within the meaning of ss.39(2)(a), “should relate to procedure and not to substantive rights.” Thus, regrettably, it is not within the Tribunal’s scope to explore fully how the Commission fulfills its substantive statutory duty when it seeks to withdraw from active participation in hearings when it takes the position that it has fulfilled its public interest mandate.

45The Tribunal therefore follows the analysis of (then) Chair Garfield in Jeffrey v. Dofasco Inc. 2004 HRTO 17 at para. 17, where he states:

Ferrier, J., in his dissenting judgment in McKenzie Forrest Inc. v. Tilberg, 1999 CanLII 35213 (ON SCDC), [1999] O.J. No. 2813 (Div. Ct.), which was adopted on appeal 2000 CanLII 5702 (ON CA), [2000] O.J. No. 1318 (C.A.), divided the statutory scheme into two parts: stage one (pre-referral) when the Commission has total control of the process (subject to judicial review by the Divisional Court); and stage two (post-referral) at which time the Commission becomes a party, distinct from the complainant, with the “carriage of the complaint” before the Tribunal. What does “carriage of the complaint” mean? Surely, it means more than who goes first in leading evidence at the hearing on the merits. As the publicly funded institution with exclusive responsibility for the enforcement of the Code, the Commission has the important duty of prosecuting the complaint in an unbiased, objective, fair and efficient manner. The Commission’s lawyer is not the complainant’s lawyer. While often advocating the same position, the Commission should not be afraid to go down a different path than the complainant on a particular issue when the evidence suggests that course of action. No less is expected from the Commission who represents the public interest, and is funded by the public’s money. The Court of Appeal in Tilberg makes it clear that the Commission and the complainant are separate parties and that the process before the Tribunal is not ended by a settlement between one of them and a respondent.

46The Tribunal has determined that it is vitally important for it to be able to control its own hearing process prior to making findings of fact and law, and that it has the jurisdiction to do so, in accordance with s.25.0.1 of the SPPA and Rule 16 of its Rules of Practice. Thus, the Tribunal may exercise its discretion to hear on the merits any motions for withdrawal by the Commission, in order to prevent any potential abuse of process and to ensure that the manner of withdrawal facilitates the orderly transfer of the matter to the complainant, in keeping with the spirit of Rule 2.09 – Withdrawal from Representation, Rules of Professional Conduct, The Law Society of Upper Canada, and Rules 15.04 and 15.05 – Motion by Solicitor for Removal as Solicitor of Record and Duty of Solicitor of Record, respectively, as set out in the Ontario Rules of Civil Procedure.

47For these reasons, the Tribunal finds that the Complainant’s objection to the Commission’s withdrawal from active participation in the matter, based on her belief that they were in this “together” does not form a sufficient legal basis to compel the Commission to remain an active participant, although the Tribunal does find that the Commission remains a “party” within the meaning of the statute nevertheless. Therefore, the Complainant can proceed with her case without the Commission and she has indicated that she intends to do so.

48The Tribunal had directed Commission counsel to file an affidavit and appear before it to provide it with any further information it required to ensure that there has been no abuse of process within the meaning of ss.23(1) of the SPPA, and that all transitional issues had been resolved, in accordance with Professor Mullan’s decision in Forde, supra, at para. 42. Counsel for the Commission participated fully in this exercise, as did the Complainant, and the Tribunal is satisfied that no abuse of process has taken place, and without inquiring into the specific details, the Tribunal is satisfied that the Complainant has been fully informed of all settlement discussions and decisions taken. The Tribunal is satisfied that there are no outstanding transitional issues of a procedural nature that require the Tribunal to exercise its authority under ss.23(1) of the SPPA over the transition of the carriage of the complaint from the Commission to the complainant, as per Forde, supra, at para. 45-49.

The Complainant’s Motion to Amend the Complaint

49The Tribunal’s discretion to permit an amendment to a complaint is premised on ss.39(1)(a) of the Code, which directs the Tribunal to determine whether a right of the complainant has been infringed.

50The Complainant’s Complaint, dated October 5, 2001, rested entirely on the allegation that she had been denied equal treatment with respect to employment because of handicap, now disability, contrary to ss.5(1) and 9. Nowhere in this Complaint were the issues of race or racial harassment raised, nor did she raise these allegations during the Commission’s investigation or in her witness statements.

51The Complainant’s motion to amend her Complaint to add the additional grounds of race and racial harassment, contrary to ss.5(1) and 5(2) of the Code, is brought on the eve of the hearing, four years after her original Complaint was made, and is based entirely on remarks that she attributes to the Personal Respondent with respect to her relationship with her fiancé. Moreover, as set out in paragraph 33, she did not hear these alleged remarks herself, but were recounted to her by someone else. She is uncertain as to whether or not this other person would be willing to testify and has not been in recent contact with him or her.

52The Tribunal must engage in a balancing exercise when it decides whether or not to exercise its discretion to permit an amendment to a Complaint.

53One important consideration is whether or not the proposed amendment is part of the continuum of the original Complaint, as per Musty v. Meridian Magnesium Products Ltd. (1998), 1998 CanLII 29851 (ON HRT), 31 C.H.R.R. D/97, at para. 68 (Ont. Bd. Inq.). In this instance, there is nothing in her original allegations that provides a nexus to this new ground of discrimination. Moreover, she was aware of this additional ground from the outset of her case, but she chose not to pursue it. This is contrary to situations where new evidence emerges, unknown at the outset, which may necessitate an amendment as a matter of procedural fairness. See: Wong v. Ottawa (City) Bd. of Education (No. 2) (1993), 1993 CanLII 16434 (ON HRT), 23 C.H.R.R. D/37 (Ont. Bd. Inq.).

54Another important consideration is the quality of the evidence that would support these new grounds. The Tribunal finds that the only evidence that can be offered by the Complaint is hearsay, which, while admissible, is of lesser weight than direct evidence. Moreover, the hearsay evidence offered by the Complainant in support of her motion is weak in and of itself.

55The Tribunal must also consider whether the amendment would cause actual prejudice to the Respondents, as per Odell v. Toronto Transit Commission (2001), 39 C.H.R.R. D/20 (Ont. Bd. Inq.). The Tribunal finds that to permit this amendment, four years after the original Complaint was made, and in light of the non-participation of the Personal Respondent, causes significant prejudice to the Corporate Respondent that cannot be cured by granting an adjournment. The Tribunal finds under all of the circumstances herein, as a matter of natural justice and fairness, the new grounds alleged are too weak on their face, too remote from the original Complaint, and brought forward too late to be advanced at this stage of the process.

56The Tribunal also has some concern about the conduct of the Complainant. Perhaps as a member of the public she does not understand this process particularly well, but it troubles the Tribunal that she wanted to proceed on a stale motion record that was not originally served and filed in accordance with the Tribunal’s Rules of Practice, and that the Tribunal had to check its own master file system and ask her why her motion had not been filed when she indicated that it should have been, and found out during the hearing of this motion that it had not been served on the Respondents when it should have been. The conduct of the parties is also something that the Tribunal may consider when contemplating an amendment, as per Odell, supra.

ORDER

57The Tribunal orders as follows:

(1) the Commission is allowed to withdraw from active participation in this proceeding since there are no transitional issues outstanding; and

(2) the Complainant’s motion to amend her Complaint to include the grounds of race and racial harassment are dismissed.

Dated at Toronto, this 6th day of January, 2005.

Mary Ross Hendriks (Acting) Chair