Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Ewing

Applicant

-and-

Thunder Bay Police Services Board and Thunder Bay Police Association

Respondents

INTERIM dECISION

Adjudicator: Ena Chadha

Date: June 3, 2011

Citation: 2011 HRTO 1066

Indexed as: Ewing v. Thunder Bay Police Services Board

1The applicant filed an Application on September 25, 2009 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment with respect to age.

2On December 1, 2009, the Tribunal delivered copies of the respondents’ Responses to the applicant.

3On December 15, 2009, the applicant filed her Reply and a Request for an Order During Proceedings (“Request”), which requested the Application be amended to include the ground of “disability”. The applicant noted that the collective agreement provision in dispute in the Application relates to the termination of disability benefits in two circumstances, namely when an individual reaches the age of 60 and wishes to continue to work or when an individual reaches the age of 60 and is in receipt of disability benefits. The applicant argued that it is appropriate to add “disability” as an alleged ground because the respondents put “disability” into issue in their Responses by claiming that the provision is an accommodation of disabled employees.

4On December 17, 2009, the respondent Board filed a response to the Request and consented to amending the Application on the condition that it is permitted the opportunity to amend its Response.

5On December 21, 2009, the respondent Association filed a response to the Request and opposed amending the Application on the basis that the Application does not include disability allegations. In the alternative, the respondent Association argued that if the applicant was allowed to amend her Application, it sought the opportunity to amend its Response.

6Subsequently, the parties participated in mediation; however, were unable to fully resolve the Application.

DECISION

7In determining 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).

8I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of “disability”. The applicant made the Request immediately after receipt of the Responses and as part of her Reply submissions. The Tribunal has not yet scheduled a hearing. The respondents did not identify any prejudice to them if the Request is granted. It appears that the requested amendment relates to a collective agreement provision that is already the subject of facts and argument in the parties’ pleadings. The respondent Board does not dispute that “disability” may be an issue in relation to the allegations. The addition of “disability” does not appear to raise new concerns distinct from the original narrative.

ORDER

9Accordingly, the applicant’s Request to amend the Application to add the ground of “disability” is granted. The respondents may file amended Responses within 30 days of date of this Interim Decision and the applicant may file an amended Reply within 7 days from receipt of the Responses.

10I am not seized of this matter.