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Human Rights Tribunal of Ontario
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**Between:**
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Moeed Khokher
Applicant
-and-
Intercon Security Limited, David Clare and Scott Cliff
Respondents
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**Interim Decision**
**Adjudicator:** Naomi Overend
**Date:** August 9, 2011
**Citation:** 2011 HRTO 1493
**Indexed as:** Khokher v. Intercon Security Limited
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[1] This Interim Decision deals with the applicant’s Request for Order During Proceedings (Form 10), dated July 4, 2011, asking to amend his Application to add a number of allegations. His Application, filed with the Tribunal on December 10, 2009 alleges that the respondents discriminated against him in employment on the basis of race, colour, creed and reprisal contrary to the *Ontario Human Rights Code*, R.S.O. 1990, c. H.19 as amended, (the “Code”).
[2] The allegations in the request to amend can be summarized as follows:
- In January 2009, a co-worker, who had been subjecting the applicant to gay pornography, started physically touching him in a sexually suggestive manner. When he informed his supervisor about this, his supervisor reportedly responded by saying: “Enjoy some man on man action. ha ha ha ha.” The company did not investigate his complaint and ignored his follow-up requests.
- He was also subject to physical threats and getting yelled at by an unspecified individual or individuals, and when he reported this to head office in January 2009 there was no follow up.
- At the end of June 2009, he started finding highlighted notes in his belongings about his accent, which he again reported to his supervisors. The response was amusement and a lecture about his accent.
- Further particulars about the meeting at which his employment was terminated.
[3] The respondents filed a Response to the Request for Order (Form 11) in which they oppose the applicant’s Request to amend on the basis that they are prejudiced by the delay, which is beyond the one-year time limit set out in s. 34(1) of the Code.
[4] Section 34 states, in part:
> (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2
>
> (a) within one year after the incident to which the application relates; or
>
> (b) if there was a series of incidents, within one year after the last incident in the series.
>
> (2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
[5] Section 34 (1) applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments. The Tribunal can, and has, granted amendments to Applications after the one year period without requiring the applicant to satisfy the test under s. 34(2) of the Code.
[6] Having said that, s. 34 does set out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they might know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced.
[7] In this case, the Request to amend was filed between 24-30 months after the incidents set out in the Request. The respondents assert they are prejudiced by the Request, both in their ability to have witnesses recall the time period in question as well as their ability to retrieve documents.
[8] The applicant’s only explanation for why he filed his Request so late is that he did not understand the significance of the allegations until he attended the Tribunal Mediation on November 24, 2010.
[9] Although unrepresented, the applicant’s original Application set out numerous allegations of discrimination under the Code, including reprisal. His training as a security guard is apparent in the level of detail provided in response to the questions posed in section 8 of his Form 1. It strains credulity that the applicant would not have appreciated the significance of what amounts to a sexual assault, verbal and physical abuse, and ridicule of his accent.
[10] The applicant further asserts that the respondents were told of his intention to amend at that time of the mediation, a position which the respondents vehemently deny. The respondents state that the requested amendments took them by surprise.
[11] The applicant has provided no explanation for why he waited more than seven months after the mediation to file the Request to amend. The hearing is scheduled for October 2011 and the deadline for disclosure of arguably relevant documents has already passed.
[12] With the exception of the last allegation, which merely further particularizes the allegation of reprisal found in the original Application, the allegations significantly alter the case the respondents have to meet. From this fact alone, it is possible to infer that the respondents are prejudiced by the late filing of the Request.
[13] For the reasons set out above, I am not prepared to grant the applicant’s Request to amend to include the allegations summarized in the first three bullet-points above. I am prepared to grant the applicant’s request to amend his Application to include the further particulars found on the last page of his typewritten text of his Request to amend, found under the heading “Day of Job Termination at the office of Leighanne Wilson.”
[14] I am not seized of this matter.
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Dated at Toronto, this 9^th^ day of August, 2011.
“signed by”
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Naomi Overend
Vice-chair
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minicounsel