Forrest v. Ontario Lottery and Gaming Corporation, 2009 HRTO 47

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerald Forrest

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 14, 2009

Citation: 2008 HRTO 47

Indexed as: Forrest v. Ontario Lottery and Gaming

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, and c. H. 19, as amended (the “Code”) on September 19, 2008.

2The purpose of this interim decision is to deal with a request by the applicant to amend the human rights complaint underlying the Application to add a new ground of discrimination.

3The original complaint filed with the Ontario Human Rights Commission in December 2006 alleged that the applicant had been discriminated against in employment on the basis of disability when he was terminated in May 2006. On December 11, 2008 the applicant indicated that he might seek to amend the Application to add discrimination on the basis of age as a new ground of discrimination.

4A schedule for submissions was agreed to at mediation. On December 23, 2008 the applicant, instead of filing submissions in support of an amendment to the original Application, attempted to file a new Application under section 34 of the Code (Form 1) under cover of a second Application under section 53(3) (Form A). Both documents have inscribed upon them the word “Amended”.

5In the body of the Form 1, the applicant states that based on information received after the initial complaint was made to the Commission there is reason to believe that he may have been discriminated against on the basis of age as well as disability. The applicant also states that while he was on sick leave two younger employees were transferred from part-time to full-time and that both age and disability were factors that were considered by the respondent in determining who would be kept on and who would not.

6The respondent objects to the proposed amendment. A number of technical arguments were advanced in response to the manner in which the applicant has sought to amend the original complaint. However for purposes of this interim decision the Form A filed on December 23, 2008 will be treated as submissions in support of the amendment of the complaint underlying the September 19, 2008 application.

7Section 53(3) applications must be based on the “subject-matter of the complaint” originally filed at the Commission. Section 53(4) of the Code provides that the Tribunal shall make rules with respect to these applications to ensure that they are dealt with in an expeditious manner. Accordingly the Tribunal has recently adopted new Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code (Transitional Application Rules). These Rules and the Tribunal’s Guide to Section 53(3) Applications contemplate that these applications will be dealt with in a highly expeditious manner.

8The respondent states that it is not open to the Tribunal to entertain an amendment to the complaint because the applicant has already invoked the process based on the original complaint as framed and because the Rules provide that the applicant should not be seeking to add new grounds or expand the subject matter of the complaint.

9Rule 6.3 of the Transitional Application Rules provides that the Tribunal will not entertain preliminary requests to add grounds or expand the subject matter of the complaint. Such requests therefore will not normally be entertained except where to do so is necessary to ensure a fair, just and highly expeditious process for the determination of the application.

10The applicant chose to make this Application under s. 53(3). The request to amend is not in the nature of a clarification of the original complaint or a re-framing of it to support alternative submissions. It is a new complaint requiring a new factual foundation and new witnesses. The addition of this new ground will result in some delay while the respondent investigates the allegation in order to properly respond to it. The facts supporting the new ground would have been known or knowable by the applicant at or about the time of his termination by the respondent in May 2006. He has provided no explanation for the delay in seeking to amend the complaint filed two years ago alleging discrimination in respect of decisions made almost three years ago.

11I find that the amendment of the complaint at this time is not necessary to ensure a fair, just and highly expeditious resolution of this application and accordingly the preliminary request to amend the complaint is rejected.