Halliday v. Van Toen Innovations Incorporated, 2012 HRTO 1046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Bruce Halliday

Applicant

-and-

Van Toen Innovations Incorporated

and Geoffrey Van Toen

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Decision Date: May 25, 2012

Citation: 2012 HRTO 1046

Indexed as: Halliday v. Van Toen Innovations Incorporated

WRITTEN SUBMISSIONS

William Bruce Halliday, Applicant

Sharan Basran, Counsel

Introduction

1This is an Application filed on October 26, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2On April 13, 2012, the applicant filed a Request for Order During Proceedings (RFOP), seeking an order permitting him to amend his Application and permitting him to file his Reply to the respondents’ Response after the time for doing so had elapsed.

3The respondents have not responded to the RFOP and the time for doing so has passed.

Request to Amend the Application

4The applicant alleged that his former employer had discriminated against him on the basis of disability and in his Application, he alleged that due to emails the employer was circulating about him, he was forced to resign on November 18, 2009. He alleged that even after his resignation, the individual respondent continued sending emails to him “and possibly to others discriminating against me based on my disability”. He also alleged that the individual respondent threatened to beat him up.

5In his RFOP, the applicant alleges that on May 5, 2011, the individual respondent uttered death threats to him and told him that he never should have filed a human rights Application. The applicant seeks to add this allegation as an incident constituting reprisal in violation of the Code.

6Criminal proceedings concluded with a Recognizance to Keep the Peace prohibiting the individual respondent from communicating or corresponding with the Applicant except through legal counsel and for the purpose of a legal proceeding. In his RFOP, the applicant states that he did not raise the May 5, 2011 reprisal allegation earlier as he was waiting for the conclusion of the criminal proceedings, and that he first provided notice to the respondents of his intention to amend the Application in October 7, 2011.

7Rule 1.7 (c) of the Tribunal’s Rules of Procedure states 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 s. 34 of the Code, the Tribunal generally considers the nature of the proposed 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.

9While the request to amend the Application has arrived at a relatively advanced stage in these proceedings, the nature of the allegation the applicant seeks to add flows directly from the allegations of discrimination in his Application and is closely connected to them in time and in substance. Further, the request to add this allegation is timely, being made within one year of the alleged event. The respondents have made no submissions and I find that if there is any prejudice to them, such prejudice can be addressed by permitting them to file further Response with regard to this allegation. In view of the above, the applicant’s request to amend his Application by adding an allegation of reprisal is allowed.

Request to File a Reply

10With regard to the application of its Rules, the Tribunal’s Rules of Procedure provide, in part, as follows:

1.1 These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

5.2 The Tribunal may vary or waive the application of these Rules at any time on its own initiative or on the request of a party, with or without terms as the Tribunal considers appropriate in accordance with Rule 1.1.

11With regard to filing a Reply, Rule 9 of the provides in part as follows:

9.1 An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An applicant may also reply to any other matter raised in the Response.

9.2 The Reply must deal only with new matters that are raised in the Response.

9.3 The Applicant must deliver a copy of the Reply to the other parties…and file it with the Tribunal not later than 14 days after the Response was sent to the Applicant.

12In the RFOP, the applicant provides a Reply to an allegation made by the respondents in their Response. Counsel for the applicant submitted that a Reply had not been provided in a timely way as the applicant did not previously have legal counsel and did not understand the importance of making a Reply.

13There is only one event for which the applicant requests to make a Reply. In the RFOP, the applicant’s version of the event was provided in two brief paragraphs. The respondents have not yet provided their disclosure prior to the hearing and I am aware of no reason to believe that the inclusion of this brief Reply will prejudice them or will unduly prolong these proceedings. I am persuaded that allowing the applicant to provide this brief Reply at this stage will facilitate an accessible process and is in the interest of a fair, just and expeditious resolution of this matter.

Direction

14The Tribunal makes the following orders:

(i) The applicant’s request to amend his Application so as to include the May 5, 2011 allegation of reprisal, is allowed.

(ii) Should the respondents wish to provide a Response to the allegation of reprisal, they must file such Response with the Tribunal and deliver it to the other party within 14 (fourteen) days of the date of this Interim Decision.

(iii) The applicant’s request to be permitted to provide a late Reply by means of the RFOP, is permitted.

15I am not seized.