HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ken Willard
Applicant
-and-
City of Toronto and Raymond Kessler
Respondents
-and-
Canadian Union of Public Employees, Local 79
Intervenor
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Willard v. City of Toronto
WRITTEN SUBMISSIONS
Ken Willard, Applicant ) Patrick James, Counsel
1The applicant filed an Application on October 8, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which he alleges harassment and discrimination with respect to employment because of age.
2The applicant works as a Property Officer for the respondent City. The applicant alleges that over the past few years he was subjected to age-related harassment and discrimination at work. The applicant alleges that he filed grievances about his concerns to no avail. The applicant alleges that the respondent City, his employer, failed to protect him from this poisoned work environment.
3The respondents deny the allegations of harassment and discrimination. The respondents allege that, for a number of years, there have been deficiencies in the applicant’s performance, unrelated to any issues of age, which have required the respondents to discuss performance issues with the applicant.
4On March 9, 2012, the applicant filed a Request for an Order During Proceedings (“Request”), asking that he be permitted to amend his Application.
5This Interim Decision addresses the applicant’s Request to amend the Application.
6By way of Interim Decision, 2011 HRTO 1936, the Tribunal ordered that paragraphs 5 and 6 be amended as follows:
- Paragraph 5 be struck from the Application; and
- Paragraph 6 be struck from the Application to the extent that the content of paragraph 6 relates to the applicant’s allegations regarding humiliating comments that occurred prior to the grievance settlement, which was fully and finally settled in November 2008,.
7Pursuant to the foregoing Interim Decision, on March 9, 2012, the applicant filed an amended Application striking paragraph 5 in its entirety and striking the second (and last) sentence of paragraph 6. Along with the amended Application, the applicant filed this Request asking that he be permitted to further amend his Application.
8In the Request, the applicant indicates that he seeks to include specific details of the discrimination and harassment he allegedly experienced “subsequent to the events that made up the November 2008 full and final release”. The applicant submits that such amendments will provide more fulsome pleadings and will be of assistance to the respondents in clarifying the case to be met. The applicant accepts that respondents would then be entitled to file a Reply to any fresh allegations raised in the amended Application. The applicant submits that the Request can be dealt with on the basis of the written submissions.
9Neither the respondents nor the intervenor filed a response to the applicant’s Request to amend his Application and the time for doing so has elapsed.
10Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expedition resolution of any matter before it the Tribunal may “allow any filing to be amended.” In considering requests to amend Applications under section 34 of the Code, the Tribunal generally examines 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, See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Aubin v. Sudbury Sexual Assault Crisis Centre, 2011 HRTO 1281.
11The nature and scope of the proposed amendments is unclear from the Request. Further, it is unclear whether in making this Request the applicant is, in fact, attempting to address the issue of further particulars. As stated in Interim Decision 2011 HRTO 1936, it was recognized by the parties and the intervenor that a number of paragraphs in the Application did not indicate the timing of the events and that the respondents had expressed concerns with respect to alleged insufficient particulars.
12As such, the Tribunal requires clarification with respect to the specific information that the applicant seeks to add to his Application; the scope and nature of the proposed amendments; and the basis upon which the applicant submits such details are appropriate amendments.
DIRECTIONS
13Accordingly, in order to properly consider the applicant’s Request, the Tribunal directs as follows:
a. Within 14 days from the date of this Interim Decision, the applicant is required to file with the Tribunal, copied the respondents and the intervenor, details with respect to the proposed information and/or allegations he seeks to be included as amendments to the Application and written submissions and legal authorities to support his Request; and
b. Within 21 days from the receipt of the applicant’s materials, the respondents and the intervenor are required to file their responding position with respect to the Request and indicate in their written submissions what amendments they agree to include or oppose and any legal authorities to support their position.
14In addition, it appears that Tribunal has been unable to contact the parties and the intervenor to conduct a mediation check. As such, the Tribunal directs the parties and the intervenor confirm in writing whether or not they are amenable to participating in mediation.
15The Tribunal will consider the parties’ submissions, and may determine any of the preliminary issues based on the parties’ written submissions, and/or may schedule future steps.
16I am not seized.
Dated at Toronto, this 20^th^ day of April, 2012.
”signed by”
Ena Chadha
Vice-chair