HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Main by her substitute decision-maker Sharon Danley

Applicant

-and-

OWN Housing Co-operative Inc.

Respondent

interiM DECISION

Adjudicator: Alison Renton

Date: April 10, 2012

Citation: 2012 HRTO 710

Indexed as: Main v. OWN Housing Co-operative Inc.

WRITTEN SUBMISSIONS

Andrea Main by her substitute ) Bay Ryley, Counsel decision-maker Sharon Danley, Applicant )

OWN Housing Co-operative Inc., Respondent ) Celia Chandler, Counsel

[1] This is an Application for Contravention of Settlement which was received by the Tribunal on June 24, 2009 under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”). The applicant alleges a breach of paragraphs 8 and 9(a) of Minutes of Settlement (“the Settlement”) that were entered into between the parties on November 25, 2008 which resolved a previous complaint under the Code filed by the applicant. In the Application, the applicant set out three remedies that she was seeking for the alleged breach of the Settlement: $5,000 in general damages; implementation of paragraph 8 of the Settlement; and implementation of paragraph 9 of the Settlement.

[2] The respondent filed a Response denying that it violated paragraphs 8 and 9(a) of the Settlement.

[3] The file is scheduled for an in-person half-day hearing on April 11, 2012 pursuant to a Notice of Confirmation of Rescheduled Hearing dated December 6, 2011.

[4] Initially the hearing was scheduled for Monday, August 30, 2010. By letter dated August 16, 2010, with the consent of the respondent’s counsel, the applicant’s counsel wrote to the Tribunal requesting an adjournment “of a month or so” because the parties were working towards a settlement and the process would require the assistance of third party vendors. By Case Assessment Direction dated August 20, 2010 (“the August 2010 CAD”) the adjournment request was denied on the basis that it did not constitute “exceptional circumstances” as required by the Tribunal’s Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests and Requests for Adjournment.

[5] On Friday, August 27, 2010, the applicant’s counsel wrote to the Tribunal to advise that there was a settlement of the Application and that the hearing for August 30, 2010 was no longer necessary. Accordingly, the Tribunal cancelled the August 30, 2010 hearing. However, at some point afterwards, the settlement fell apart and the Tribunal to reschedule the Application for hearing.

[6] In early March 2012, the parties exchanged copies of arguably relevant documents and so advised the Tribunal of this exchange.

[7] On March 21, 2012, the applicant’s counsel filed a Request for Order During Proceedings (“RFOP”) seeking to amend the Application. Specifically, the applicant seeks to elaborate upon her allegation that paragraph 8 of the Settlement was breached, as well as alleging that paragraphs 1, 2, 8a, 9, 10, 11, 13 and 15a of the Settlement were also breached. The applicant seeks to rely upon additional alleged violations of the Settlement dating from January 2009, February 2009, March 2009, January 2010, March 2010, October 2010, and November 2010. In addition, the applicant also seeks to amend the remedies that she is seeking. She now seeks:

1. $25,000 in general damages “given the respondent’s further breaches of the Minutes of Settlement since this Application for breach of settlement was filed”;

2. to replace paragraph 2 of Section 7 of her Application with: “An order that OWN Co-operative install the product Rubaroc to cover the entire floor of the laundry room, including the small entrance-way into the laundry room and bathroom directly adjacent to the laundry room”;

3. an order for the implementation of paragraphs 13 – 14 of the Settlement;

4. the following public interest remedies:

• A mediation between the entire Membership and Board to be conducted by St. Stephens Community House (Community Mediation Service[)];

• An order that Esther Forde refrain from communicating directly with the Applicant’s substitute decision-maker Sharon Danley. Any communication should go through a Board member or the office administrator;

• An order that the Respondent provide training for all staff and Board members, conducted by an external expert in human rights and discrimination on the basis of disability in housing.

[8] The respondent filed a Response to the RFOP on April 4, 2012 requesting that the Tribunal deny the applicant’s RFOP, or, alternatively, adjourn the hearing to give the respondent an opportunity to respond to the new allegations and provide disclosure on the new matters raised in the RFOP. The respondent submits that the RFOP is untimely, the last new allegation occurred more than 16 months before the RFOP was filed and after the parties had exchanged their documentation for the April 11, 2012 hearing. The respondent notes that the applicant has been represented by counsel and that at no time prior to the filing of the applicant’s RFOP was the respondent made aware that the applicant wanted to amend her Application; this, the respondent submits, is “particularly troublesome because the Applicant has been aware of the allegations she seeks to include in the Application for some time”. Further, the respondent submits that the applicant has not provided any reason for her delay in filing her RFOP and the respondent will be prejudiced if the RFOP is granted by the Tribunal.

[9] On April 5, 2012, late in the afternoon, the applicant’s counsel sent an email responding to the respondent’s Response to the RFOP and providing reasons for the delay. She writes:

In terms of the reasons for the delay, Ms. Danley would like to explain to the Tribunal that:

• She is the primary caregiver for her daughter Andrea Main, whose disabilities are extensive. There are times where Ms. Danley is on ‘red alert’ and has to be entirely dedicated to caring for Andrea;

• Ms. Danley also cares for her son, who has had two surgeries in the past year;

• Ms. Danley has [health] problems and [has been absent from work] for over one and a half years;

• During the past few months, Ms. Danley has also been faced with an eviction notice from the Response, and has had to spent [sic] considerable time on fighting those proceedings.

[10] The Tribunal’s offices were closed on Friday, April 6 and Monday, April 9, 2012.

Analysis

[11] Rule 1.7(c) of the Tribunal’s Rules of Procedure states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

c) allow any filing to be amended.

[12] In [Wozenilek v. 7-Eleven, 2010 HRTO 407](https://www.minicounsel.ca/hrto/2010/407), 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.

[13] In the facts if this case, I am denying the applicant’s RFOP to amend her Application to rely upon breaches of the Settlement other than paragraphs 8 and 9. It is not fair to the respondent, several weeks before the scheduled hearing date, for the applicant to seek to amend her Application particularly as most of the alleged breaches upon which she seeks to rely occurred before the initial hearing date of August 2010. The proposed amendments would require another adjournment of the hearing, would require the respondent to file an amended Response, and would significantly expand upon the allegations already contained in the Application. The hearing was, effectively, already adjourned once in 2010 and it is not fair, at this point in the process, to adjourn the hearing yet again so that the respondent can amend its Response. Finally, when the applicant filed her RFOP, it did not contain any explanation as to why such significant amendments to the Application were being sought on the eve of the hearing, factoring in the 14 day response period for a response to file a Response to the RFOP.

[14] With respect to the reply submissions filed by the applicant to explain the delay, I note that these were made without any supporting documentation in the form of an email sent slightly before the Tribunal’s offices closed for a long weekend. Further, this information does not address why the applicant did not include the portion of the proposed amendments which relate to periods of time before the Application was filed with the Tribunal and thus could have been included in the original Application

[15] In these circumstances, the applicant’s request to amend as requested in her RFOP is denied. The hearing will continue as scheduled on April 11, 2012.

Dated at Toronto, this 10^th^ day of April, 2012.

“signed by”

Alison Renton

Vice-chair