Donevan v. University of Windsor, 2010 HRTO 201

Human Rights Tribunal of Ontario

B E T W E E N:

Donevan

Applicant

-and-

University of Windsor, William Gallant, Brent Angel, Clayton Smith and Ross Paul

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 28, 2010

Citation: 2010 HRTO 201

Indexed as: Donevan v. University of Windsor

1This Application was filed May 22, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a Request for Order during Proceedings seeking to add parties as respondents to this proceeding. A hearing in this matter is scheduled for March 26, 2010.

Background

2In his original complaint to the Ontario Human Rights Commission (the "Commission") dated May 30, 2005, the applicant alleged that he was discriminated against because of disability because the respondents refused to permit him to record classes as a form of accommodation in 2004. The respondents assert that the applicant was permitted to record lectures, but not personal discussions. On January 21, 2007, the applicant sought to amend the complaint at the Commission by providing details of events which occurred on January 8 and 9, 2007 regarding a similar alleged refusal to accommodate, and resulting in a call to the police. By letter dated July 21, 2007, the applicant again wrote to the Commission asking them to amend the complaint to add allegations of harassment and reprisal in relation to the University's decision to pursue academic charges in relation to the events of September 2004.

3The Commission did not formally amend the complaint to include these post-complaint events.

Addition of Parties

4In a prior Request for Order, the applicant sought to add Elizabeth Oakley, Kim Harper, Alan Wildeman, Barbara Niewitecks, Danielle Isti and Charles James as respondents. That Request was denied in an earlier Interim Decision because of the absence of any reasons provided for their addition: 2009 HRTO 2070.

5In the prior Interim Decision, I noted that the scope of the Application was confined to the events as set out in the complaint dated May 2005 and did not encompass any post-complaint allegations.

6The applicant filed a second Request for Order seeking to add Elizabeth Oakley, Kim Harper, Dr. Angell and Clayton Smith based on his requests to the Commission outlined above, to formally amend his complaint and add parties.

7The respondents submit that I have already ruled on both issues in the prior Interim Decision and ought not to reconsider my decision. Alternatively, they relied upon their original submissions with respect to the scope of the hearing and the addition of any further respondents.

Scope of the Application

8I recognize that the applicant attempted in good faith to amend the complaint to include fresh allegations in 2007. However, the Commission did not amend the complaint at that time, and therefore, the subject matter of the complaint relates only to the original complaint. The significance of a formal amendment is not technical. Had the Commission formally amended the complaint at that time and added the persons requested, the amended complaint would have been served on the parties, and they would have been asked to respond at that time.

9Further, the addition of the allegations as set out in the January and July 2007 letters would significantly alter the scope of the proceedings. They involve allegations of a fresh refusal to accommodate on January 8 and 9, 2007 and the involvement of the police. They also include allegations that the respondents' decision to institute academic misconduct proceedings is an additional form of discrimination.

10In contrast, the subject matter of the present Application relates to a relatively straightforward issue regarding the scope of the duty to accommodate the applicant's need to record lectures in his 2004 classes, and whether that duty to accommodate extended to a requirement to permit recording of student discussions.

11Nothing in this Interim Decision affects the applicant's ability to file a fresh application with the Tribunal pursuant to s. 34(1) of the Code, provided the other requirements of that section have been met.

12The Request to add parties is denied.