J.M. v. Cambridge (City), 2011 HRTO 215

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.M.

Applicant

-and-

Corporation of the City of Cambridge, Andrea Riley and Don Smith

Respondents

interim decision

Adjudicator: Mary Truemner

Date: January 31, 2011

Citation: 2011 HRTO 215

Indexed as: J.M. v. Cambridge (City)

1This is an Interim Decision in respect of an Application filed on June 30, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It addresses the applicant’s Request to amend her Application and the respondents’ request to dismiss the Application under s.45.1 of the Code. It also deals with some case management issues.

Background

2The applicant alleges discrimination in services on the basis of family status and on the basis of her association with her son who is disabled. She claims that she was denied childcare when the respondents did not allow her son to attend a summer camp that they operated. Her son, B.M., filed an Application prior to his mother against the same respondents, alleging discrimination in services on the basis of disability because the respondents did not allow him to attend their camp. Prior to the hearing into B.M.’s Application, B.M. filed a Request to add his mother as a party, and to consolidate his Application with his mother’s Application which he attached to his Request. Given the timing of B.M.’s Request, it was denied in an Interim Decision: B.M. v. Cambridge (City), 2009 HRTO 954.

3After the hearing of B.M.’s Application was completed, but prior to the decision being released, the respondents wrote to the Tribunal, requesting that the Tribunal deal with the applicant’s claim for damages in her Application by addressing it in the decision that was pending with respect to B.M.’s Application. The respondents took the position that the Tribunal “addressed, heard testimony and received evidence” with respect to this Application in the hearing of B.M.’s Application. The respondents proposed that they not dispute the applicant’s entitlement to any damages flowing from their treatment of her son if the Tribunal were to find that they discriminated against him, as long as she could “prove entitlement to such damages.”

4In a Case Assessment Direction (CAD) dated September 28, 2009, I noted that the respondents, in taking this position, appeared to have waived their right to respond to this Application, but, if that was not the case, they were directed to file a Response immediately as none had yet been filed. I also adjourned the proceedings with respect to this Application until my decision in B.M.’s Application was issued and I directed that if I were to find that the respondents violated the Code, then the parties in this Application were to provide written submissions on damages.

5The Decision in B.M.’s Application was released on May 18, 2010: B.M. v. Cambridge (City), 2010 HRTO 1104. It found that the respondents discriminated against B.M. on the basis of disability, and confirmed that the applicant’s claim for damages should be addressed as part of her own Application.

6The applicant then filed submissions on June 2, 2010 with respect to damages as per the earlier CAD dated September 28, 2009, referred to above. In those submissions, the applicant also requested an anonymization order. The respondents filed submissions with respect to damages on June 15, 2010, and the applicant replied on June 22, 2010.

7A conference call was held on June 29, 2010 to address the Request and to deal with case management issues, including the fact that the respondents had not yet filed a Response to the Application. During the conference call, the parties expressed an eagerness to participate in mediation which the Tribunal facilitates in cases where a Response has been filed and where the parties agree to participate.

8In a CAD dated July 2, 2010, I confirmed the positions taken by the parties in the conference call, namely that the respondents agreed to the applicant’s Request for anonymization and that the applicant sought damages only for her wage loss. I directed the applicant to file a Request to amend the Application as it appeared from the conference call that the damages she was seeking had not been specified in her Application. I also directed the respondents to file their Response to the Application so that mediation could be scheduled by the Tribunal.

9The respondents filed a full Response on July 23, 2010, pursuant to the July 2, 2010 CAD. The Response denies that the respondents discriminated against the applicant; however, notwithstanding my finding in B.M., the Response states that their treatment of B.M. was not in violation of the Code. This position in the Response is confusing because it was filed after the Tribunal released its decision in B.M. v. Cambridge (City), supra, finding that the respondents’ treatment of B.M. did violate the Code.

10The respondents also request in the Response that the Tribunal dismiss the Application under s.45.1 of the Code because the Application has been dealt with in B.M.’s Application, and this other proceeding

(…) is based on the same facts, and there was a finding in that proceeding that there was a breach of the [Code] and damages were awarded. Those damages are the same that are being claimed in this Application. The only difference is that, in the other proceeding, the adjudicator declined to make a ruling on the issue of lost wages, instead deferring the issue to the hearing of this Application.

11The respondents have recently communicated to the Tribunal that they no longer wish to participate in mediation, and would instead like to proceed with a hearing. The Tribunal is no longer scheduling mediation.

The Applicant’s Request to Amend the Application

12Pursuant to my CAD of July 2, 2010, the applicant filed a Request to amend her Application on July 9, 2010 so that the financial remedy she seeks under section 10 of the Application would state: $9,384.00 Lost Wages: $408/mth x 23 months (July 2008-May 2010).” On the original Application, dated July 19, 2009, the applicant claimed $1690 for lost wages “and ongoing plus interest.”

13Given that both the original claim and the proposed amendment basically claim ongoing lost wages, I see no prejudice to the respondents in granting the applicant’s Request to amend her Application. The respondents will have an opportunity at the hearing of the Application to cross-examine the applicant with respect to this claim. The applicant has confirmed that this is the only remedy that she is seeking. The amendment is fair, and I grant the Request.

The Request to dismiss the Application under [s. 45.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html#sec45.1_smooth) of the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

14Section 45.1 of the Code provides as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

15In B.M. v. Cambridge (City), supra, the Tribunal dealt with facts which are integral to the applicant’s claim, but the substance of the issues in B.M.’s proceeding was whether B.M. was excluded from services by the respondents and whether his needs arising from his disability had been accommodated. In contrast, the substance of the issue in this Application is whether the applicant was denied childcare services on the basis of her family status and association with someone with a disability. The B.M. proceeding did not deal with the applicant’s issues. Therefore, the respondents’ Request to have her Application dismissed pursuant to s.45.1 of the Code is denied.

Case Management

16The Response in this matter is almost identical to the Response in the B.M. case. The respondents deny that they violated the Code with respect to B.M. As the Tribunal already determined the issue of whether the respondents violated the Code with respect to B.M. in the final Decision B.M. v. Cambridge (City), supra, a position taking issue with that finding would need to be the subject of a judicial review.

17The respondents are therefore required to provide submissions clarifying whether they dispute that the applicant may rely on the findings of B.M. v. Cambridge (City), supra to support a Code violation against her on the basis of her family status and association. If they do dispute the applicant’s position that a Code violation against the applicant flows from the B.M. Decision, then the respondents must specifically state this to be the case in their submissions. If the only issue that the respondents contest is the quantum of damages that the applicant claims, then they must state so in their submissions. These submissions must be delivered to the applicant and filed at the Tribunal within 14 days of this Interim Decision.

18The Tribunal will schedule a hearing once the above submissions have been filed, and I may issue further Case Assessment Directions as required.

19I am seized.