Jennifer Robert v. 289900 Ontario Ltd. o/a Betty’s Restaurant, 2009 HRTO 653

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Robert

Applicant

-and-

289900 Ontario Ltd. o/a Betty’s Restaurant

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: May 20, 2009

Citation: 2009 HRTO 653

Indexed as: Robert v. 289900 Ontario

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on October 23, 2008. The applicant alleges she was discriminated against in employment on the basis of disability contrary to section 5 of the Code. More specifically, the applicant states that she had to leave her employment as a waitress in the respondent’s restaurant in order to care for her three year old son after he was diagnosed with Type I diabetes and ketoacidosis. She alleges that when she attempted to return to work after several months she was told that other waitresses had been hired and there was no work available for her.

2The applicant and respondent agreed to mediation. An unsuccessful mediation was held on February 5, 2009. This matter is currently scheduled for a hearing on July 21-22, 2009.

3This Interim Decision deals with a request by the applicant to amend her Application.

4The applicant seeks to have “family status” added as a ground of discrimination. The applicant argues that the discrimination described in her Application - an applicant who is the parent of a child with a disability - is based on the intersection of disability and family status and as a consequence both grounds should be identified in the Application. She contends that the requested amendment does not disclose new facts and that this part of the proposed amendment would only require further legal argument. The applicant argues the timing of this request causes no prejudice to the respondent.

5The applicant seeks to add further particulars to her Application and has provided those particulars. These particulars focus on some of the interaction between the applicant and the respondent’s staff during the period the applicant was caring for her son and what was known and agreed to by the parties during her absence from work. The applicant argues these particulars put the respondent in a better position to respond to the allegations of discrimination in that they clarify the facts. The applicant argues the timing of this request causes no prejudice to the respondent.

6The applicant seeks to add further proposed remedies. These proposed remedies are based on the applicant not being reinstated. The applicant argues this amendment does not change the underlying facts as pled and again is made in a timely fashion.

7The respondent opposes the applicant’s Request for three reasons. One, the respondent argues the current Application will fail as it does not establish a prima facie case of discrimination as there is no basis for claiming discrimination based on the disability of another. Consequently, the request to added family status as a ground of discrimination effectively creates a new complaint and has been requested in order to save the current Application from being dismissed.

8Two, the applicant’s Request to add further particulars should not be needed if the addition of “Family Status” as a ground of discrimination only raises legal arguments as the applicant suggests in her Request. The respondent contends that the new particulars are intended to support the assertion of a new claim.

9Three, the Rquest has not been made in a timely fashion as it has been made after mediation. Again the respondent contends that the proposed amendments represent an effort by the applicant to bring forward a new claim.

Analysis and Decision

10Rule 1.7(c) of the Tribunal’s Rules of Procedure provides:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

(c) allow any filing to be amended.

11I allow the applicant’s Request. To begin, adding “family status” as a ground of discrimination does not constitute the assertion of a new claim. The applicant was explicit in her original Application that the reason for her prolonged absence from her employment was to care for her sick child. The addition of the ground of family status does not change the substance of the claim that she was treated in a discriminatory manner as a result of those events, and it would hardly be fair and just and ultimately expeditious to require the applicant to file a new Application in order to advance her claim of discrimination on the basis of family status.

12It is true that the applicant does also seek to add new facts to her Application. However, I do not find these facts have been forwarded in order to justify or support a new ground of discrimination. Rather, they are being forwarded to detail the alleged nature of the contact between the applicant and respondent and why the applicant believes she has been the victim of discrimination. I do not see, under the circumstances and in light of the arguments before me, how the respondent is prejudiced by this. It may assist in clarifying the basis of the applicant’s allegations and intended areas of evidence at the hearing. I will permit the requested amendments.

13The applicant has asked for new potential remedies to be added to the application in light of the possibility that she would not want to return to work for the respondent. Ultimately any remedy awarded by the Tribunal arises from a finding of discrimination and would be made in consideration of the parties’ arguments as to remedy. I cannot see the prejudice of allowing this amendment detailing the applicant’s possible position as to appropriate remedy. I will permit the requested amendments.

14In making these rulings I have also considered the timing of the amendments, and their impact on the hearing. The hearing is scheduled for July 21, 2009. The parties’ disclosure of documents and witnesses must take place no later than 45 days prior to the first scheduled day of the hearing which would be June 7, 2009. In the circumstances, the respondent still has ample time to meet this deadline and prepare for the hearing.

15In summary, in view of the stage at which the Request to amend has been made, the nature of the amendments, and the absence of any apparent prejudice, I see no reason to deny the amendments. I order that the Application be amended accordingly. If the respondent wishes to file an amended Response as a result of this order, the respondent is directed to do so within 10 days of receipt of this Interim Decision.