Johnson v. Scarborough Town Centre Holdings Inc., 2011 HRTO 1490

Human Rights Tribunal of Ontario

Between:

Kevin Johnson Applicant

-and-

Scarborough Town Centre Holdings Inc. (958902 Ontario Inc.) and Oxford Properties Group Inc. (1527558 Ontario Inc.) Respondents

Interim Decision

Adjudicator: Naomi Overend Date: August 29, 2011 Citation: 2011 HRTO 1490 Indexed as: Johnson v. Scarborough Town Centre Holdings Inc.

1This Interim Decision deals with the respondents’ two Requests for Order During Proceedings (Form 10) asking the Tribunal to (1) require the applicant to be represented by a next friend and (2) amend their Response. The applicant filed Responses to the Requests for Order (Form 11) in which he did not oppose the request to amend, but did oppose the requirement that he be represented by a next friend.

2This Application alleges that the respondents discriminated against the applicant in the provision of services on the basis of race, colour, ancestry, place of origin, ethnic origin, sex and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

Request to Require Representation by a Next Friend

3Since this Request was filed on March 1, 2011, the applicant has since turned 18. The Request is, therefore, moot.

Request to Amend Response

4In their Request to amend the Response, the respondents note that it has come to their attention that the applicant was under 18 at the time of the events giving rise to his Application. They wish to amend their Response to include five additional paragraphs addressing the defence that the definition of age found in s. 10(1) of the Code restricts the protection from age discrimination in services to those who are 18 and older and asking the Tribunal to dismiss on that basis.

5The applicant quite rightly points out that his age was given in his Application (i.e., that the respondents could have asserted this defence in their initial Response). However, in the circumstances of this case, when or how the respondents became aware of the defence is not material. The applicant does not oppose the proposed amendment.

6The applicant opposes the respondents’ request to strike the allegation of age discrimination in the Application (found in paragraph 5 of the proposed amendments) and to that end has filed a Notice of Constitutional Challenge to the definition of age in the Code. However, since the respondents have not brought a Request for Order to strike, and merely wish to make this request within their Response, this objection does not bear on the decision on whether to grant the amendment.

7The Tribunal is prepared to grant the request to amend in light of the sequence of events set out above, the applicant’s consent and the apparent lack of prejudice to the applicant. Accordingly, this Response is amended to include the five paragraphs set out in Schedule “A” to the Request for Order During Proceedings.

8I am not seized of this matter.