Lewis v. Toronto (City), 2012 HRTO 2148

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Lewis Applicant

-and-

City of Toronto and Kelvin Seow Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: November 14, 2012 Citation: 2012 HRTO 2148 Indexed as: Lewis v. Toronto (City)

WRITTEN SUBMISSIONS

Peter Lewis, Applicant Moya Teklu, Counsel

City of Toronto and Kelvin Seow, Respondents Michael Martosh, Counsel

1This Application was filed on October 26, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination with respect to employment based on race, colour ancestry, place of origin, citizenship, ethnic origin and reprisal. This Interim Decision addresses a Request for an Order During Proceedings (“RFOP”) filed by the applicant on September 5, 2012 requesting leave to amend the Application.

BACKGROUND

2The applicant was employed as a community recreation supervisor by the corporate respondent. His Application alleges that in September 2010 he came to learn of a serious racist incident that occurred in September 2008 that involved staff of the corporate respondent that was not, in the applicant’s view, appropriately dealt with. The Application alleges that the applicant requested that the respondents investigate this incident but that the way in which the ensuing investigation was carried out and the way the applicant was treated during the course of the investigation violated his rights under the Code. The applicant’s allegations of discriminatory treatment include an allegation that the respondent’s treatment of the applicant was in reprisal for the applicant’s efforts to ensure that the investigation was properly carried out and that it appropriately dealt with Code related issues.

3On November 30, 2011, the respondents filed a Response to the application. On March 6, 2012, the applicant filed a Reply to the Response.

REQUEST TO AMEND THE APPLICATION

4On September 14, 2012, the applicant filed a Request for an Order During Proceedings (“RFOP”) requesting that the Application be amended. The applicant requests that the Application be amended to include allegations related to the termination of his employment by the corporate respondent on July 17, 2012. The applicant alleges that the complaints made by other parties that gave rise to the termination of his employment were not properly investigated and addressed by the corporate respondent. The applicant alleges that the termination of his employment was a continuation of the reprisal that forms the basis of his Application.

5The applicant submits that the nature of his request to amend as well as the stage at which the request has been made and the absence of any prejudice to the respondents are all factors that militate in favour of the Tribunal granting the proposed amendments. The applicant relies on the Tribunal’s decision in Wozenilik v 7-Eleven Canada Inc., 2009 HRTO 926.

6The applicant submits that there is a direct connection between the allegations in the proposed amendments and the alleged acts of discrimination in the Application as both involve the corporate respondent unfairly disciplining the applicant. The applicant also submits that the requested amendments are timely in that they are filed shortly after the events of June and July 2012, events, the applicant notes, that only occurred after the filing of the Application. The applicant further submits that the request to amend is timely in that the Application is still at an early stage.

7Finally, the applicant submits that the respondents would not be prejudiced by the request to amend given that the respondents are in full knowledge of the events that gave rise to the new allegations.

8On November 5, 2012, the respondents filed a Response to the applicant’s request to amend. The respondents state that they do not oppose the applicant’s request to amend. They do submit that the events that give rise to the decision to terminate the applicant’s employment are unrelated to the investigation and proceedings that form the basis of the original Application. They submit that the respondent staff involved in the two investigations and the decisions to discipline the applicant in 2010 and to terminate the applicant’s employment in 2012 are different. They deny that the investigation and subsequent decision to terminate the applicant’s employment in 2012 are acts of reprisal that can be linked to the events of 2010.

DECISION

9In considering requests to amend Applications 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(s). See, for example, 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.

10It is clear that amending the Application, as requested, will significantly expand the scope of the Application. A hearing of an amended Application will require the parties to adduce further evidence and rely on more witnesses. There may be case management issues. However, the applicant is submitting that the proposed amendments are related to the allegations contained in his Application. Whether or not the applicant establishes a link between the corporate respondent’s investigation practices and decisions to discipline the applicant in the existing and new allegations, I am of the view that there would be an overall efficiency to dealing with all of these issues in a single rather than in multiple applications. I further note that the event giving rise to the new allegations also occurred after the filing of the application and is relatively recent. The respondents have also not argued they would face any prejudice if the current application was amended.

11Having regard to all of the circumstances including the current stage of this Application and the absence of any objection from the respondents I am satisfied that the applicant can amend the Application as described in his RFOP.

12The respondents may file an amended Response. Given the nature of the proposed amendments the respondents have 35 days from the date of this decision to do so. The applicant may file a further reply no later than 14 days after receiving the amended response.

13I am not seized of this matter.