Ba Tu v. Murray Sylvester, 2010 HRTO 1640

Human Rights Tribunal of Ontario

Between:

Ba Tu Applicant

-and-

Murray Sylvester Respondent

Interim Decision

Adjudicator: Jay Sengupta Date: August 4, 2010 Citation: 2010 HRTO 1640 Indexed as: Tu v. Sylvester

1The applicant, Ba Tu, filed an Application with the Tribunal on May 6, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He claims that he experienced discrimination in receipt of goods, services and facilities on the basis of race, colour, ancestry and place of origin.

2The respondent filed a Response on July 3, 2009, denying the allegations. The applicant did not file a Reply.

3This Interim Decision concerns two Requests for Orders During Proceedings filed by the applicant on September 2, 2009 and July 13, 2010, asking to amend his Application.

4Both Requests seek to amend and expand the monetary relief sought by the applicant and the second Request seeks to add an allegation that the respondent “intentionally made a false document” and refers to a document included in the Response.

5The respondent filed Form 11s responding to both Requests consenting to the first Request but opposing the second.

6In considering requests to amend Applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent (see Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563).

7The respondent’s main objection to the second request to amend the Application to seek an additional financial amount as a remedy is that the applicant filed an initial Request and has not provided any explanation of what has occurred in the intervening period to necessitate a second increase; nor has he provided copies of any supporting documents that would justify the increased request for monetary compensation. The respondent seeks production of all supporting documents relevant to the Request to amend.

8The respondent’s objection to the “serious new allegation” is that it took place 27 months ago and the applicant is out of time and should not be permitted to raise the allegation more than 12 months after the events in question.

9Given that no date has yet been set for a hearing into this matter, the deadline for parties to exchange arguably relevant materials has not yet passed. Once that deadline has passed, the respondent is free to renew his request if, in his view, all arguably relevant materials have not been provided.

10Upon review of the information filed, it appears that the material that is characterized as a “new allegation” by both parties is more in the nature of an argument about a document submitted by the respondent in his Response than a new allegation of fact. It is not necessary to seek an amendment in order to submit argument of this nature. The applicant is free to make his submissions about the document at the hearing of this matter.

11I see no reason to deny the requests to amend the monetary remedy requested. The amendment is made without any determination by the Tribunal as to the appropriateness of the remedy, and without prejudice to any position the respondent may wish to take on the remedy sought. I order that the Application be amended accordingly. If the respondent wishes to file an amended Response as a result of this order, he is directed to do so within 20 days of receipt of this order.

12I am not seized of this matter.