Gurofsky v. Toronto District School Board, 2010 HRTO 482

Human Rights Tribunal of Ontario

BETWEEN:

Helen Gurofsky Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Eric Whist Date: March 3, 2010 Citation: 2010 HRTO 482 Indexed as: Gurofsky v. Toronto District School Board

1The applicant, Helen Gurofsky, filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on October 23, 2008. The applicant alleges that she was discriminated against in employment on the basis of age in relation to her efforts to be hired as a permanent contract teacher by the organizational respondent, the Toronto District School Board (“TDSB”). This Interim Decision is in regard to a Request for an Order During Proceedings (the “Request”) filed by the applicant on February 22, 2010 seeking to amend the Application and asking for the further production of documents from the respondent if the request to amend is granted.

2The applicant requests that the Application be amended to include the following additional particulars:

1a) The TDSB failed in its duty under section 5.1 of the Code to investigate the applicant’s discrimination complaint as set out in the applicant’s letter to Gerry Connelly, (the previous Director of Education of the TDSB) dated January 12, 2007. As a result the applicant seeks an additional monetary remedy of $20,000 together with an order directing the respondent to investigate her discrimination complaint.

1b) The TDSB has continued to discriminate against the applicant on the basis of age, given its recent conduct in selecting younger, less qualified, and less experienced candidates for two permanent part-time positions the applicant interviewed for at West Humber and Victoria Park in the Fall of 2009 while she was on the ETH (Eligible to Hire) list for 2009-2010.

3The applicant states that if these amendments are permitted she is seeking a further order for the production of statistical data related to all permanent contract teaching positions which were filled in the period June 1 to October 19, 2009 for which she may have been eligible including data to indicate the age and qualifications of all candidates. The applicant also requests production of all interview notes and score sheets for the two specific job competitions for which she was interviewed in the Fall of 2009. She further requests production of all the documents relating to the steps the respondent took to investigate the applicant’s letter of January 12, 2007 including any letters of response to the applicant.

4The applicant further requests that four references in her Application to a “permanent contract teaching position” be amended to a “full-time permanent contract teaching position”.

5The respondent filed its response to the Request on February 26, 2010. The respondent opposes the applicant’s Request primarily on the grounds that the Request was filed only a short time before the hearing which is scheduled for March 8, 9 and 10, 2010. The respondent argues this is egregiously prejudicial to the respondent who would not have time to adequately respond let alone prepare disclosure material, witnesses and call evidence. The respondent questions why the applicant could not have made such a request in a more timely fashion. The respondent also argues that the request for the respondent to add particulars concerning the applicant’s January 12, 2007 letter to the former Director of Education is statutorily barred given that this event occurred over 21 months before the Application was filed.

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 applicant’s Request to amend the Application is denied. The Request is late having been filed within two weeks of the date of the hearing. There is no information to suggest why the Request could not have been made in a more timely fashion. I accept that the late nature of the Request is prejudicial to the respondent who, in effect, does not have time to respond. Indeed, adding these allegations would require an adjournment of the hearing which affects the ability of the Tribunal to maintain the integrity of its hearing process and to proceed in a fair, just and expeditious manner.

8The applicant’s Request includes adding allegations regarding two job competitions that occurred in the Fall 2009, well after the Application was filed in October 2008. Adding these allegations will not only delay the current hearing but will add to its scope. It is still open to the applicant to file a separate application in regards to these two 2009 competitions. The Request for production of documents related to these and related competitions from 2009 can be dealt with at the time of any separate application.

9The applicant’s request to include allegations regarding the TDSB’s response to her January 12, 2007 letter is late and not necessary. It is open to the applicant to question the respondent on its response to the applicant’s January 12, 2007 letter in light of the fact that this document was cites in the Application and relates to the applicant’s complaint about her treatment by the TDSB. I am prepared to hear submissions as to whether the respondent has an obligation under section 5(1) of the Code to respond to the applicant’s concerns and if so, what that obligation was.

10I see no need, to amend four references to a permanent contract teaching positions to indicate that the positions were full time. I was provided no information to suggest this was anything but a minor clarification. Under the circumstances I find this to be an unnecessary clarification that does not warrant amending the Application.