Kelly Smyth v. Native Women’s Centre, OI Employee Leasing Inc. and Jennifer Talbot, 2012 HRTO 406

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Smyth

Applicant

-and-

Native Women’s Centre, OI Employee Leasing Inc. and Jennifer Talbot

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: February 27, 2012

Citation: 2012 HRTO 406

Indexed as: Smyth v. Native Women’s Centre

1The applicant filed this Application on April 18, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment on the basis of disability.

2The respondents wrote to the Tribunal on July 22, 2011 and filed a “pro forma” Form 2 Response. The respondents advised that they understood from communications from the applicant’s counsel that it was the applicant’s intention to file an amended Application. As such, the respondents requested the opportunity to file a fulsome Response upon receiving the applicant’s amended Application.

3On October 27, 2011, counsel for the applicant filed a Request for Order During Proceedings (“Request”) seeking to amend the Application. The applicant asks to amend the Application in order to more fully state the cause of action and claims against the respondents. The proposed amendments include details of the alleged harassment and discrimination and itemized specifics with respect to the monetary and non-monetary remedies sought.

4The respondents did not file submissions in response to the applicant’s Request and instead indicate that they take no position with respect to the proposed amendments.

ANALYSIS

5Rule 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.”

6In determining 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. 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.

7In previous decisions, the Tribunal has allowed amendments to Applications, including remedial claims, prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050.

8The Application is still in the early stages – no actual Response has been filed and the request to amend was made within one year from the conclusion of the applicant’s employment. The respondents take no position with respect to the proposed amendment and, therefore, no concerns of any prejudice have been raised with the Tribunal.

9It is noteworthy that the applicant appeared to be self-represented when the original Application was filed and the original narrative consisted of numerous pages of handwritten and typed text interspersed with various documentation. The proposed amendments include a chronological summary of the applicant’s allegations and specifications about the applicant’s remedial claim.

10The proposed amendments do not appear to alter the original nature of the Application, but rather explain more succinctly the applicant’s allegations. As such, I see no reason to deny the request to amend given that all of the proposed information assists in streamlining and clarifying the original Application.

11Accordingly, the applicant’s Request to amend the Application is granted. Within 35 days of the date of this Interim Decision, the respondents are directed to file a Form 2 Response and indicate therein whether or not they are amenable to participating in mediation.

12I am not seized of this matter.