Morris v. Ontario (Finance), 2011 HRTO 563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hermilyn Morris

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Finance and Dianne Lone

Respondents

Interim decision

Adjudicator: Brian Cook

Date: March 21, 2011

Citation: 2011 HRTO 563

Indexed as: Morris v. Ontario (Finance)

WRITTEN SUBMISSIONS

Hermilyn Morris, Applicant ) Ayoob Khan, Representative

Ministry of Finance and )

Dianne Long, Respondents ) Susan Munn, Counsel

1This Application is scheduled for hearing on April 5, 2011. This Interim Decision deals with the applicant’s Request to adjourn the hearing. It also deals with the applicant’s Request to amend the Application to add additional grounds of alleged discrimination.

THE ADJOURNMENT REQUEST

2The adjournment Request was submitted on March 11, 2011. The basis for the Request is that the applicant fell on ice on February 19, 2011 and broke her ankle. She had surgery and her ankle was put in a cast. She was last treated by her doctor on March 9, 2011 when she was advised that her foot was swollen and should be kept elevated. She will be seen again on April 6, 2011, when a decision about future treatment will be made. The respondents oppose the adjournment Request.

3The information submitted in support of the adjournment Request does not explain why the applicant would be unable to participate in the scheduled hearing with appropriate accommodation to allow her to elevate her ankle or to take breaks as required. The adjournment Request is denied.

THE REQUEST TO AMEND THE APPLICATION

4The Application was filed on September 21, 2009 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). It alleged discrimination on the grounds of age.

5When she filed the Application, the applicant did not have a representative. She subsequently retained Glen Morrison, a paralegal. The Application was scheduled for hearing on November 23, 2010. The hearing was adjourned for the reasons set out in Decision 2010 HRTO 2327. At that hearing, the applicant’s representative advised that the applicant wished to amend the Application to include race, colour and place of origin. The applicant is now represented by Ayoob Khan, who appears to be an associate of Mr. Morrison. He filed the Request for Order During Proceedings (the “Request”) that seeks to amend the Application by adding race, colour and place of origin.

6The respondents submit that the Request should be denied. The respondents argue that the additional grounds should have been identified at the time the Application was originally filed. The respondents suggest that there is no explanation for why the applicant would realize that race, colour and place or origin were factors relevant to her allegations only at this late stage. The respondents submit that they would be prejudiced by the amendment. In the alternative, the respondents submit that the Request to amend the Application provides no particulars that might demonstrate that there is a factual basis to the new allegations and ask that the new allegations be dismissed on that basis.

7The Tribunal has permitted amendments to applications made under section 34, taking into account the nature of the amendment, whether prejudice will result to the other parties to the Application, the stage at which the request to amend is made, and whether the proposed amendment is fair. See Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

8In this case, the applicant does not allege any specific incidents or facts in regards to the allegations of discrimination on the grounds of race, colour or place of origin that differ from the allegations in relation to age. It appears that she rather alleges that these new grounds provide another basis for her general allegations of unfair treatment and for the July 2009 lay off. The Request has been made at a late stage in the proceedings, although the applicant did indicate that the Request would be made at the time of the November 23, 2010 hearing.

9In the absence of any allegations specific to the new grounds, it appears to me that the essence of the applicant’s evidence will be the same whether or not the amendment is permitted. It also appears that the evidence that the respondents may call will be essentially the same whether or not the amendment is permitted. In these circumstances, I am prepared to grant the Request to amend the Application. Any concerns about potential prejudice that may arise will be dealt with at the hearing.