Strutt v. Toronto (City), 2009 HRTO 422

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Strutt

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: April 9, 2009

Citation: 2009 HRTO 422

Indexed as: Strutt v. Toronto (City)

1This is an Application filed August 25, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to address the respondent’s Request for early dismissal.

2The complaint which underlies the current Application was filed with the Ontario Human Rights Commission (“Commission”) on February 7, 2008, and alleged discrimination in employment and goods and services on the basis of age and receipt of public assistance. In the complaint itself, the applicant suggested that the reason he was being denied forklift training may also be due to his race.

3The respondent sought early and often to have the applicant provide further details of the alleged discrimination. After obtaining representation in January 2009, the applicant filed a statement of additional facts and remedy and raised for the first time that he was a person with a mental disability and the failure to provide the forklift training amounted to discrimination because of disability. The applicant has withdrawn any allegations of discrimination on the basis of age, race or receipt of public assistance. The respondent asserts that this is an impermissible attempt to expand the subject matter of the complaint and should not be permitted: Forrest v Ontario Lottery and Gaming Corporation, 2009 HRTO 47. In addition, as the applicant has withdrawn the allegations which formed the subject-matter of his complaint, age, race and receipt of public assistance, there are no allegations of discrimination remaining in dispute and the Application ought to be dismissed.

4The applicant responds that there is precedent for the Tribunal’s exercise of its discretion in favour of permitting amendments and expansion to section 53(3) applications, Williams v. Ottawa Internationals Soccer, 2009 HRTO 48, and that applicant’s mental disability contributed to his failure to particularize the nature of the disability discrimination at the time the complaint was initially filed.

5The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. In my view, the legislative intention as set out in the transition provisions is that section 53(3) applications should be dealt with in a highly expeditious manner. To that end, the Tribunal developed Rules to foster a fair, just and highly expeditious process. In particular, Rule 6.3 states:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.

6In my view, these circumstances in this case are more analogous to the Forrest case than the Williams case. The basis for permitting the addition of an alternative ground of discrimination in Williams was that it amounted to a reframing of the same factual allegations to better capture the alleged discrimination. In this case, the statement of additional facts now relied upon bears little if any, resemblance to the original complaint.

7I find that the subject-matter of the original complaint did not include allegations of discrimination on the basis of disability. As such, these allegations are not properly part of this Application.

8In light of the withdrawal of the allegations of discrimination on the basis of race, age and receipt of public assistance, there appear to be no issues in dispute. The parties are directed to advise the Registrar-Transition within 15 days of the date of this Interim Decision whether they whether wish to make further written or oral submissions on the final disposition of the Application.