Matthew Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Wozenilek Applicant

-and-

7-Eleven Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Mary Truemner Date: June 29, 2009 Citation: 2009 HRTO 926 Indexed as: Wozeilek v. 7-Eleven Canada

Introduction

1This is an Application filed July 7, 2008 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant is a customer of one of the respondent's stores in Guelph. He alleges that the respondent discriminated against him on the ground of disability with respect to services because he alleges that the store was inaccessible to him in his wheelchair.

Preliminary or Procedural Issues

2The applicant and the respondent have both filed Requests for Orders During Proceedings. The applicant wants to amend his Application to change a date in the third paragraph, but, more significantly, he wants to expand the remedies he is seeking and add the following: 1) $25,000 for pain and suffering; 2) a public letter of regret from the respondent; and 3) the installation of automatic doors at all 7-Eleven stores in Canada. The respondent opposes the applicant's Request.

3It appears that the respondent's Request for Order During Proceedings, filed subsequent to their receipt of the applicant's Request, is also in part an objection to the applicant's Request because the respondent wants the Tribunal to strike the applicant's request for a future compliance remedy. The other part of the respondent's Request argues that the Application should be dismissed because the respondent recently installed the automatic doors being sought by the applicant. The respondent argues that the doors were the only remedy the applicant itemized in the Application; therefore, the respondent argues that the matter is moot. The applicant opposes the respondent's Request.

Decision on Applicant's Request to Amend

4In Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2, the Board of Inquiry stated:

The Board has jurisdiction to amend complaints. In deciding whether or not to permit such amendments, the Board is exercising its discretion. The factors influencing how that discretion will be exercised include the following:

Whether the amendment would occasion actual prejudice to the other party;

Fairness;

The conduct of the party seeking the amendment;

The impact of the proposed amendment on the course of the hearing and any other parties.

5Although the above decision was made before amendments to the Code came into effect, the Tribunal has also permitted amendments to applications made under section 34, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice (see Dube v. Canadian Career College, 2008 HRTO 336). The applicant's request to change the first sentence in the third paragraph of his Application from "in late October 2008" to "On November 7, 2008" was not specifically addressed in the respondent's materials, and I see no reason not to allow the amendment. I therefore exercise my discretion to do so.

6While the applicant did not itemize general damages or a public letter of regret in his Application, he did describe the impact of the events on him, and these new remedies are reasonably connected to his original allegations. I do not find that the amendments would prejudice the respondents or prolong the hearing. In the circumstances, I exercise my discretion to grant the applicant's Request to amend the Application to add as requested remedies: 1) $25,000 for pain and suffering; and 2) a public letter of regret from the respondent.

7I will defer my decision on whether to permit the amendment to add the remedy of installation of automatic doors at all 7-Eleven stores in Canada, and I will hear the parties' submissions on this aspect of the applicant's Request at the commencement of the hearing.

The Respondent's Request for Order During Proceedings

8I dismiss the respondent's Request that the Application be dismissed as moot. The respondent justified its Request with reference to the recent installation of automatic doors at the store that the applicant alleged was inaccessible to him. Even if the remedy originally sought by the applicant has been achieved, I have found that he is entitled to amend his Application to request additional remedies.

9I will defer my determination on the respondent's Request to strike the applicant's request for a future compliance remedy, and I will hear the parties' submissions on this issue at the same time as the applicant's Request to add that remedy. After hearing the parties' submissions, I may make further procedural directions. However, the parties should be prepared to deal with all aspects of the Application on the date scheduled for hearing, with the exception noted below. Mr. Angelo should be available by telephone. The parties should accordingly bring all necessary witnesses and documents with them to the hearing.

10If the Tribunal grants the Request to amend the Application to include a systemic remedy of the installation of automatic doors at all stores, the Tribunal will schedule another hearing day, if necessary, to address the issue of whether this is an appropriate remedy.