Gazankas v. Municipality of Red Lake, 2011 HRTO 302

Human Rights Tribunal of Ontario

B E T W E E N:

Gary Gazankas Applicant

-and-

Municipality of Red Lake Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: February 14, 2011 Citation: 2011 HRTO 302 Indexed as: Gazankas v. Red Lake (Municipality)

WRITTEN SUBMISSIONS

Gary Gazankas, Applicant William G. Shanks, Counsel

Municipality of Red Lake, Respondent Paula Ruzak, Counsel

1This is an Application filed on May 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he was not awarded the position of Fire Chief with the respondent Municipality because of his age.

2The parties met with a mediator on June 9, 2010 in an effort to resolve the Application. As the matter did not resolve, the Tribunal will schedule a hearing.

3On January 13, 2011, the applicant filed a Request for an Order During Proceedings, seeking to file an amended Application. The respondent opposes the Request in part.

4The amended Application differs from the original Application in re-stating the narrative portion of the Application (Question #8) and in the remedy sought. The respondent consents to the re-statement of the narrative, but opposes the amendments to the remedy.

DISPUTE ABOUT MEDIATION CONFIDENTIALITY AND FURTHER SUBMISSIONS

5I will address at the outset the respondent’s objections to some of the submissions made in support of the Request.

6The respondent objected to the fact that the applicant filed further submissions in response to its Response to the Request, stating that the Tribunal’s Rules do not provide for an opportunity for further submissions. The respondent also objected to the further submissions on the basis that they refer to confidential discussions during mediation.

7On my review of the matter, I see no basis to disregard the applicant’s further submissions.

8In its Response to the Request, the respondent submits that the request to amend the remedy sought should be denied because, among other things, the facts put forward by the applicant have been in his knowledge from the beginning and were not raised at mediation. The applicant’s further submissions take issue with this, claiming that these facts were made known to the respondent during mediation.

9Although the Tribunal’s Rules do not make provision for a reply to a Response to a Request, the Tribunal has the discretion to direct that one be filed, or accept submissions in the nature of a reply. To the extent that the applicant’s further submissions address issues raised in the Response to the Request, I do not find it unfair to have regard to those further submissions. As well, insofar as the further submissions refer to statements made in mediation, it is clear that they are intended to address the respondent’s assertions in this regard. Obviously, even the need to address the respondent’s submissions should not be an opportunity to reveal the content of mediation discussions, but the applicant’s submissions only address the specific areas raised by the respondent.

10The Tribunal observes that this type of dispute could have been avoided. Where it is apparent that the parties are not able to resolve an Application through mediation, it is helpful for the next stages of the process for the parties to identify any procedural issues and outstanding disputes and it is for that reason that the Tribunal’s mediators often canvass case management issues following the conclusion of the mediation. It is open to the parties, during this case management discussion, to come to a mutual understanding about whether information given during the mediation may be relevant to an issue on which they may wish the Tribunal to rule.

REQUEST TO AMEND APPLICATION

11The disputed amendments relate to the remedy sought, and facts in support of the remedy. Among other things, the applicant wishes to claim monetary compensation for the alleged discrimination, beyond lost income, which was not claimed in his original Application. He also wishes to be placed in the position that he asserts he should have been awarded, but for the age discrimination. The applicant wishes to reduce the damages claimed for lost income.

12Among the factors the applicant refers to in support of the Request to file an amended Application is the fact that, he was unrepresented at the time he drafted his original Application (he now has counsel) and through lack of familiarity with the Application process failed to identify certain remedies available for him to claim. The applicant states that he asked for the respondent’s consent to the amendments in November 2010, which was not forthcoming. He states that the amendments will not result in any delay to the hearing process.

13The respondent submits that these facts have been within the applicant’s knowledge from the beginning, are untimely and should not be permitted to be filed by way of amendment when they are clearly outside the time frames set out in section 34(1) and (2) of the Code.

14Further, the respondent asserts that permitting the proposed amendment would be highly prejudicial to the respondent in that it has lost the opportunity to fully investigate the new allegations in a timely fashion and it will incur additional legal costs. Allowing the amendment will also prolong the hearing, as well as affect the rights of the current incumbent who has been denied the opportunity to be heard to date.

15After considering the various circumstances, the Tribunal is not satisfied that there is good reason to deny the amendments sought. The disputed amendments do not change the nature of the allegations of discrimination, but only the remedy. As such, they are not untimely under section 34(1). The facts sought to be added relate to the applicant’s circumstances and the impact of the alleged discrimination on him, not to the respondent’s conduct.

16I have considered the decision in Wozenilek v. 7-Eleven Canada Inc. 2010 HRTO 407, submitted by the respondent. Although I agree with the principles applied in that case to the determination of whether to grant an amendment to the remedies sought, I am satisfied that the facts there were very different from the ones before me. The applicant in Wozenilek sought to expand a remedy beyond an individual respondent, to all related stores across Canada.

17Although the Tribunal appreciates the respondent’s concern that the amendments could have been sought earlier, permitting them now will not affect the scheduling of the hearing in this matter. Although granting the Request may lengthen the hearing, that in itself is not a reason in all the circumstances to deny the amendments.

18Further, the Tribunal will provide the incumbent with notice of this Application, as an affected party. Given that the hearing has not yet been scheduled, the incumbent will have ample opportunity to decide whether or not he wishes to participate and to retain counsel if he wishes.

19The Tribunal therefore directs as follows:

• The Application will be replaced by the amended Application filed with the Request for Order;

• The respondent may file an amended Response in Form 2 within 2 weeks of this Interim Decision, with a copy to the applicant;

• The applicant may file an amended Reply within one week of his receipt of the amended Response, if any;

• The respondent is directed to provide the Tribunal with contact information for the incumbent so that he may be given notice as an affected party, within one week of this Interim Decision.

20I am not seized of this matter.