HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anthony Elliott
Applicant
-and-
Can Art Aluminum Extrusion Inc.
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Elliott v. Can Art Aluminum Extrusions
1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 22, 2011 alleging discrimination with respect to employment on the basis of disability.
2The applicant alleges that he was injured at work on November 8, 2010 and dismissed from his employment on November 12, 2010. The applicant alleges that his dismissal was discrimination because of disability and that the respondent used a performance issue as a pretext to terminate his employment.
3The respondent filed a Response on April 15, 2011 denying the allegations of discrimination.
4The applicant filed a Reply on May 16, 2011.
5On September 27, 2011, following unsuccessful mediation, the applicant filed a Request for Order During Proceedings (“Request”) seeking to amend the original Application. The applicant requests that the original Application be replaced by an amended Application, which is different from the original Application in the following substantive respects: 1) re-organizes the information contained in various parts of the original Application into the applicant’s narrative under Question 8, 2) answers Question A17, 3.) provides information with respect to concurrent proceedings, 4) provides details with respect to the applicant’s remedial claims and 5.) produces arguably relevant documentation.
6On October 6, 2011, the respondent filed a response opposing the applicant’s request to amend. Although disagreeing with the amendments, the respondent did not provide any submissions in regards to its opposition to the proposed amendments.
DECISION
7Rule 1.7(c) of the Tribunal’s Rules of Procedure state that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”
8In 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).
9I am satisfied that the applicant should be permitted to amend the Application as contained in the proposed new Application.
10The request to amend the Application was made within one year of the last alleged event. The reorganization of the original information into a complete narrative under Question 8 does not raise new allegations or concerns distinct from the original narrative because the disability allegations were described by the applicant in the original Application but not in narrative form under Question 8. There is no dispute that the respondent was aware of these allegations from the outset because the original Application contained the information which now has been organized under Question 8. Further, the proposed response to Question A17, while it appears to be one additional piece of information, is a clarification of the core allegations of discrimination in the narrative and does not alter the subject matter of the original Application.
11With respect to the new information regarding remedies, it is noteworthy that the original Application did not provide any details about the remedies claimed and simply stated that “unknown at this time”. The proposed remedial amendments include a claim for general damages, non-monetary relief and a claim for the lost wages allegedly experienced by the applicant. I see no reason to deny the request to amend the remedial claim given that this information was not included in the original Application. The original Application failed to delineate the lost wages and left the issue of remedies blank. The information provided in the proposed remedial amendments assists the Tribunal and respondent by clearly stipulating the applicant’s remedial claim.
12I also have no concerns regarding the additional information with respect to concurrent proceedings and the production of potentially relevant documentation. These amendments are made without any determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding these issues.
13In conclusion, I order the following:
The Application be amended by replacing the original Application with the revised new Application;
Should the respondent wish to file an amended Response, it may do so within 35 days of the date of this Interim Decision; and
The applicant may file a Reply to any Amended Response within 14 days of receipt of the Response.
14I am not seized.
Dated at Toronto, this 12th day of December, 2011.
“signed by”
Ena Chadha
Vice-chair