Human Rights Tribunal of Ontario
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Donna Giguere
Complainant
-and-
Popeye Restaurant and Viola Landry
Respondents
INTERIM DECISION
Adjudicator: Michael Gottheil
Human Rights Tribunal of Ontario
400 University Avenue, 7^th^ 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
INTRODUCTION
1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended (“the Code”), alleging an infringement of sections 5(1), 9 and 12. The original complaint is dated July 9, 2004 and was amended January 2, 2006. The complaint was referred to the Tribunal on April 26, 2006.
2This decision deals with a Motion brought by the Commission to add a ground of discrimination to the complaint.
3The essence of the complaint is the allegation that the Complainant, Donna Giguere was terminated from her employment as a waitress as a result of her common law spouse being HIV positive. The Respondents deny the allegation, and claim that Ms. Giguere was terminated for valid business reasons. The complaint, as referred to the Tribunal, lists “Because of Association” and “Disability” as the grounds of discrimination.
4Following the exchange of pleadings, on December 7, 2006 the Tribunal held a pre-hearing conference call with the parties in order to set dates for the hearing of this matter. At that time, counsel for the Commission advised that she wished to bring a Motion to add the ground of “Marital Status” to the complaint. The Respondent, Viola Landry, objected to the Commission’s request. She argued that it was too late in the day to amend the complaint and it would be unfair to the Respondents to permit the addition of a ground. The Complainant supported the Commission’s position.
5The Tribunal set dates for the exchange of submissions and advised the parties that the issue would be determined on the basis of their written submissions.
DECISION
6After careful consideration of the parties’ submissions, I have determined that it is appropriate to permit the addition of marital status as a ground in the complaint.
7Human Rights Tribunals and the Courts have recognized the special, quasi-constitutional nature of Human Rights legislation, and the fundamental importance of the rights enshrined therein. The Code should always be interpreted and applied broadly, in a way which furthers its important objects, rather than in a narrow or overly technical manner.
8The principles governing the question to be decided in this Motion were aptly set out in the decision of Chair Heather MacNaughton (as she then was) in Riemer v. York Regional Police (No. 1) (Unreported, July 30, 1997), (Ont. Bd.Inq.), At paragraphs 4 – 6 of the decision, Chair MacNaughton wrote:
It is clear from the jurisprudence of the Ontario Board of Inquiry, and the Canadian Human Rights Tribunal, and was not disputed by counsel for the Respondent, that I have jurisdiction to amend a complaint. That jurisdiction arises from the mandate, accorded the Board of Inquiry in Section 39(l)(a) of the Code, to determine whether a right of the complainant has been infringed.
The principles which govern the exercise of that jurisdiction were originally set out in Cousens v. the Canadian Nurses Association (1981), 1981 CanLII 4331 (ON HRT), 2 C.H.R.R. D/365 (Ont. Bd, of Inq.) and approved in Tabor and Lee v. David Scott and West End Construction Limited (1982), 1982 CanLII 4887 (ON HRT), 3 C.H.R.R. D/1073 (Ont. Bd. of Inq.). In Cousens the Board held that it had a mandate to inquire into allegations of discrimination which extended beyond the specific ground of contravention alleged in the complaint. Further, the complaint form differed from an information or indictment in a criminal proceeding in that it served only as general notice to a party in an administrative proceeding. That principle has been affirmed more recently by the Ontario Board of Inquiry in Entrop v. Imperial Oil Ltd (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186 and Moffat v. Oswirt and The Kinark Child and Family Services (unreported, October 31, 1996).
In deciding whether to exercise my jurisdiction in this case, I must assess the prejudice to the Respondents. If I find that the Respondents are prejudiced I must consider whether that prejudice can be rectified by allowing the Respondents further time to prepare to meet the allegations.
9In the present case the Commission asserted that the Respondents would suffer no prejudice if I were to grant the Motion. Counsel pointed out that the Commission was not seeking to add any additional allegations or particulars, rather only an additional ground of discrimination which (it claims) is supported by the same facts already alleged in the original complaint and in its pleadings. The Commission asserted that the amendment goes only to legal argument to be addressed at the end of the case, in the final submissions of the parties.
10The Respondents did not identify any prejudice that they claim they would suffer if I were to allow the addition of the ground of marital status.
11The task of the Tribunal in dealing with a complaint referred by the Commission is to ensure that the subject matter of the complaint is determined in a fair, just and expeditious way. The focus will be on the substance and the merits of the complaint rather than on issues of form or technical defect. Where the Commission or a complainant seeks to amend a complaint after referral, and real prejudice can be demonstrated, the Tribunal will address any unfairness through the granting an adjournment, or in appropriate cases, will refuse to permit the amendment. In this case, the Respondents have not demonstrated that they will suffer any real prejudice by the granting of the Motion. As a result, and based on the jurisprudence of this and other Human Rights Tribunals, I will allow the addition of marital status as a ground to this complaint.
Dated at Toronto, this 9^th^ day of March, 2007.
Michael Gottheil
Chair