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Randall Gwyn v. City of Toronto -Toronto Fire Services, 2009 HRTO 2135 — HRTO | minicounsel | minicounsel

December 9, 2009

Randall Gwyn v. City of Toronto -Toronto Fire Services, 2009 HRTO 2135

Case Summary

The applicant sought to amend his human rights applications, which originally alleged that the collective agreement prevented him from applying for promotion due to his disability, to include post-complaint allegations regarding the respondents' refusal to recognize his diploma program. The Tribunal denied the request to amend, finding that the proposed amendment would alter the subject matter of the original complaints filed with the Commission prior to June 30, 2008, contrary to the transitional provisions of the Code.

Human Rights Tribunal of Ontario

B E T W E E N:

Randall Gwyn

Applicant

-and-

City of Toronto -Toronto Fire Services

Respondent

AND B E T W E E N:

Randall Gwyn

Applicant

-and-

Toronto Professional Firefighters’ Association

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 9, 2009

Citation: 2009 HRTO 2135

Indexed as: Gwyn v. Toronto (City)

[1] These Applications were filed under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a disputed request to amend the Application to add post-complaint events.

[2] The complaints which underlie the current Applications were filed with the Ontario Human Rights Commission (“Commission”) on March 8, 2008. In his complaints, the applicant alleged that he was being discriminated against because of his disability because the practice or application of the collective agreement prevents him from applying for promotion.

[3] The applicant seeks to amend his Applications to include the allegation that the respondents continue to discriminate against him by refusing to treat his Ontario Fire College Company Officer Diploma Program as equivalent to the TFS Company Officer Modular Program, which further impedes his chance at promotion. He also asserts that the union is not advocating on his behalf on this issue.

[4] The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. While the transition Rules contemplate that parties may make a request to amend an application, the Code provisions prevail. Amendments which alter the subject matter of the original complaint will be denied.

[5] In this case, the alleged ongoing discrimination is the failure to properly consider a course taken by the applicant and the union’s alleged failure to advocate. In my view, this would alter the focus of the Applications which is on the collective agreement rules which allegedly have an adverse impact on the applicant because of his disability.

[6] The Request to amend the Applications is denied.

[7] Nothing in this Interim Decision affects the applicant’s ability to file a fresh application with the Tribunal pursuant to s. 34(1) of the Code, provided the other requirements of that section have been met.

Dated at Toronto, this 9^th day of December, 2009.

“Signed by”

Kaye Joachim

Alternate Chair