Lachance v. McDonald’s Restaurants of Canada Limited, 2012 HRTO 2091

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jocelyne Lachance

Applicant

-and-

McDonald’s Restaurants of Canada Limited

Respondent

INTERIM decision

Adjudicator: Ena Chadha

Date: November 1, 2012

Citation: 2012 HRTO 2091

Indexed as: Lachance v. McDonald’s Restaurants of Canada Limited

WRITTEN SUBMISSIONS

Jocelyne Lachance, Applicant

Self-represented

McDonald’s Restaurant of Canada Limited, Respondent

Donna Polgar, Counsel

1The applicant filed this Application on April 23, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to services, goods and facilities on the basis of ancestry and sex.

2The respondent filed a Response on May 30, 2012 denying the allegations.

3On August 9, 2012, the applicant filed a Reply.

4On October 9, 2012, the respondent filed a Request for an Order during Proceedings asking the Tribunal to allow it to file an amended Response narrative. The respondent submits that it recently retained counsel to assist it with respect to this matter and that the amended narrative provides greater depth to the alleged circumstances than the original narrative.

5On October 18, 2012, the applicant filed a response opposing the respondent’s request on the basis that the respondent is attempting to add new information that initially should have been included in its response if that information was true.

ANALYSIS & DECISION

6The respondent seeks to amend its Response by filing additional details to its original narrative. In addition to providing an amended narrative, the respondent notes it was misidentified by an incorrect name. The respondent indicates that its proper legal name is “McDonald’s Restaurants of Canada Limited”.

7For the reasons that follow and without deciding the factual issues, I find that the respondent’s request to amend the Response to include the new narrative should be granted.

8Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

9In determining requests to amend applications filed 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. Comparable considerations should also be assessed in determining requests to amend responses, specifically, the timing of the amendment, scope of the amendment, reasons for the amendment and any potential harm to the applicant.

10I am satisfied that the respondent should be permitted to file an amended narrative. It seems the original Response was filed by the respondent organization without the assistance of counsel. This matter is still in the early stages of the Tribunal’s process and the original Response was filed only about four and half months earlier. The additional details provide further clarity and information regarding the respondent’s line of defence and do not appear to raise new issues distinct from the original concerns highlighted in the Response.

11The applicant opposes the proposed amendments because she believes the new information is false since it was not provided in the original Response. I find that the applicant’s concerns regarding the credibility of any information or reliability of any alleged shifting defences can be raised at the hearing into the merits of the Application where the applicant can challenge the weight to be given to any evidence on these matters. There does not appear to be any other issues of prejudice being asserted by the applicant.

12Accordingly, the respondent’s request to amend the Response to include a new narrative is granted. This amendment is made without any determination by the Tribunal as to the merits of the allegations and without prejudice to any position the applicant may wish to take regarding these issues at the hearing.

ORDER

13The Tribunal orders as follows:

i. The Response is amended to add the new narrative;

ii. The style of cause is amended to reflect the respondent’s proper legal name, “McDonald’s Restaurants of Canada Limited”; and

iii. Within 14 days of the date of this Interim Decision, the applicant may file an amended Reply.

14I am not seized of this matter.