Persad v. Toronto District School Board, 2012 HRTO 1983

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suraj Persad

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 19, 2012

Citation: 2012 HRTO 1983

Indexed as: Persad v. Toronto District School Board

WRITTEN SUBMISSIONS

Suraj Persad, Applicant

Ron Franklin, Representative

Toronto District School Board, Respondent

Grant Bowers, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of ethnic origin and creed. The parties participated in mediation, which did not result in a settlement, and the Application is in the queue to be scheduled for hearing.

2The applicant submitted a Request for Order During Proceedings (“RFOP”), dated September 25, 2012, in which he seeks to amend his Application. Specifically, he seeks to add reprisal as a Code ground, change the date of the last incident of alleged discrimination from November 1, 2011 to February 29, 2012, and clarify the remedies that he is seeking.

3The respondent filed a Response to the RFOP in which it essentially does not oppose the applicant’s request to amend his Application with respect to adding reprisal as a ground and changing the last incident of alleged discrimination to February 29, 2012. The respondent notes that both of these issues are addressed on in the original Application. However, the respondent submits that its position it premised on the applicant’s allegations, as set out in the Application, remains unchanged.

4With respect to the applicant’s request to amend his Application by clarifying the remedies that he is seeking, the respondent is not opposed to this change either. However, it wants to continue to assert the position, as it set out in para. 147 of the Response, and submits that “[t]he Respondent reserves the right to make further submissions… on the issue of damages upon the merits of the Application being determined by the Tribunal”.

5The respondent also seeks to clarify para. 144 of its Response.

analysis

6In Wozenilek v. 7-Eleven Canada, 2010 HRTO 407, the Tribunal stated at para. 26 that it would consider the following factors in deciding whether or not to amend a pleading: (a) whether the amendment would occasion actual prejudice to the other party; (b) fairness; (c) the conduct of the party seeking the amendment; and (d) the impact of the proposed amendment on the course of the hearing and any other parties.

7In this case, given that the respondent does not oppose the requested amendments and the Application has yet to be scheduled for hearing, the Tribunal grants the applicant’s request to amend his Application. Of course, 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 the position the respondent may wish to take regarding these issues. See Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, at para. 5.

order

8In conclusion, I order the following:

1. The Application is amended to include:

a. the Code ground of reprisal;

b. The date of the last incident of alleged discrimination is changed from November 1, 2011 to February 29, 2012;

c. The remedial claim pursuant to the applicant’s RFOP.

2. The respondent may file with the Tribunal, and copy to the applicant, an amended Response within 35 days of the date of this Interim Decision; and,

3. The applicant may file with the Tribunal, and copy to the respondent, a Reply to the respondent’s amended Response within 14 days of receipt of the amended Response.

9The respondent’s request to clarify para. 144 of its Response will be left to the Vice-chair assigned to the hearing to determine.

10I am not seized with this matter.