B.M. v. Cambridge (City), 2009 HRTO 954

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B. M. by his next friend J. M.

Applicant

-and-

The Corporation of the City of Cambridge, Andrea Riley and Don Smith

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: July 3, 2009

Citation: 2009 HRTO 954

Indexed as: B.M. v. Cambridge (City)

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), scheduled to be heard July 6, 7 and 8, 2009. The purpose of this Interim Decision is to consider the applicant’s June 18, 2009 Request for an Order During Proceedings to amend the Application, to consolidate the hearing of this Application with the Application of his mother, to replace the names of the applicant and his mother with initials, and to obtain particulars. Another purpose of this Interim Decision is to address the respondents’ June 29, 2009 Request for an Order During Proceedings to produce a further document and to add a witness to their witness list. Finally, the parties’ Request for an adjournment is addressed.

The Applicant’s Request to Amend

2The Request characterizes the amendments being sought as damages that “are aimed at ensuring that there is a proper legal foundation for the damages claim already made in the application.” These damages appear to be special damages incurred by the applicant’s mother. For example, the Application lists lost wages and child care costs. The amendments to the Application involve adding family status as a ground, providing information in that part of Form 1C which involves family status, and adding the applicant’s mother as an applicant.

3In Odell v. Toronto Transit Commission, 2001 CanLII 26210 (ON HRT), [2001] O.H.R.B.I.D. No. 2, 39 C.H.R.R. 200, 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.

4Although 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).

5The respondents filed a Response to the applicant’s Request on June 29, 2009, eleven days after the Request was made, which was well within the time period required by the Tribunal’s Rules. The respondents oppose the Request on the basis that it was filed just prior to the hearing and has caught them by surprise. They argue that the respondents would be prejudiced by the proposed amendment and addition of the applicant’s mother as a party because of the need to research family status discrimination. I agree that the proposed amendment would require research and preparation of strategy, given that the legal analysis involving family status would need to explore the question of its liability to the parent for alleged discrimination against the child.

6I find the respondents’ position that they would be prejudiced is reasonable given the timing of the applicant’s Request so close to the hearing. I also find that the addition of the ground and the party would significantly affect the course of the hearing, in that an adjournment would most probably be required. As well, the proposed amendments would broaden the scope of the Application and prolong the hearing. Therefore, I refuse the Request for the amendments on the basis that they would not be fair, just and expeditious.

The Applicant’s Request to Consolidate Applications

7The applicant’s Request for an Order During Proceedings not only seeks to add his mother as a party, but also to consolidate his Application with his mother’s Application, which he attaches to his Request. The mother’s Application was filed only recently and has yet to be processed by the Tribunal and delivered on the respondents. The Request to consolidate is denied for the same reasons as discussed in the context of the amendments.

The Applicant’s Request for a Rule 3.11 Order

8The respondents take no position with respect to this request.

9The importance of an open hearing is a well-known principle, but s.9(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) provides a specific exemption to the general rule that hearings are open to the public where:

intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle.

10In the present case, the applicant is a child. There will be evidence not only about the applicant’s disability, but also evidence about his alleged bad behaviour. I accept that these are personal matters that have a potential to create a stigma that may harm the applicant. In keeping with the Tribunal’s decision in C.M. v. York Region District School Board, 2009 HRTO 735, I find there is a special importance of protecting children in our legal system, and I grant the Request to use initials. Both the applicant’s and his mother’s initials will be used to protect the applicant’s identity.

The Applicant’s Request for Particulars

11This issue will be dealt with at the hearing.

The Applicant’s and the Respondents’ Joint Request for an Adjournment

12The main reason for the parties’ request to adjourn is based on the possible expansion of the hearing to include the allegation of family status discrimination against the applicant’s mother. Given that this Interim Decision has not allowed amendments to the Application and has refused the Request to consolidate Applications, there is no need for the parties to have additional time to address additional issues. There will be no adjournment and the hearing will proceed as scheduled.

The Respondents’ Request to Add to their Document and Witness Lists

13The respondents filed their Request on June 29, 2009, seeking to add Callum McKee as a witness, and to add a letter from Amy Lee to the applicant’s mother. The applicant responded on June 30, 2009 to state that he cannot respond because the respondents did not submit the document or the witness statement they propose to add to their lists, and the applicant cannot adequately prepare. The applicant states that the proposed witness is not known to the applicant or his family, and he has no idea what the witness will say.

14Given the refusal of the adjournment request, the addition of a witness at this late stage would be unfair to the applicant, who should have adequate time to prepare for all evidence the respondents intend to adduce. It would appear from the respondents’ Request that Mr. McKee was neither involved in nor had knowledge of the incidents giving rise to the Application. The respondents propose only that Mr. McKee discuss “camp operations including safety issues and risks involved when operating a camp.” Given the proposed testimony of witnesses on the original list that the respondents submitted, I am not convinced that Mr. McKee will provide any additional assistance to the Tribunal. Weighing the questionable usefulness of his testimony with the prejudice to the applicant, I will not allow the addition of this witness. The part of the Request that seeks to add Mr. McKee as a witness is denied.

15With respect to the letter from Ms. Lee to the applicant’s mother that the respondents now seek to add, I see no prejudice to the applicant if his mother received the letter, but I will deal with this issue at the hearing.