HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Smith Applicant
-and-
The Rover’s Rest and Bruce Dorman Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee Date: May 7, 2012 Citation: 2012 HRTO 895 Indexed as: Smith v. The Rover’s Rest
WRITTEN SUBMISSIONS
Deborah Smith, Applicant ) Victoria Shen, Counsel
INTRODUCTION
1The purpose of this Interim Decision is to deal with the applicant’s Request to amend her Application, and to provide a direction to the respondents with respect to complying with their disclosure obligations prior to the hearing.
REQUEST TO AMEND
2On April 17, 2012, the applicant’s newly retained legal counsel filed a Request for an Order During Proceeding which requested that the Tribunal issue an order to amend the Application to add the ground of reprisal. She submitted that the applicant’s Request should be granted because she was not represented by counsel when she filed her Application, but that the essential facts that form the reprisal were included in the Application and disclosed with the production in the prior hearing.
3The respondents have not filed a Response and the time for doing so has now passed.
4In determining a request to amend an application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
5I see no reason not to grant the Request. I agree with the applicant’s uncontradicted submissions. Furthermore, there is no evidence that the respondents will suffer prejudice or that there will be a negative impact on the course of the hearing if the Request is granted.
6Accordingly, the applicant’s Request to amend her Application to include the ground of reprisal is granted. The respondents may file written submissions in Response prior to the hearing, or address the amendment at the hearing through their opening statement, evidence, and closing submissions and arguments.
DIRECTION TO RESPONDENTS
7On May 10, 2011, the Tribunal issued a Notice of Confirmation of Hearing to the parties which informed them that the hearing was scheduled for October 13 and 14, 2011.
8On October 7, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) to the parties with respect to managing the hearing. The CAD noted that the parties had not complied with Rules 16 and 17 of the Tribunal’s Rules of Disclosure on documents and witnesses, directed the parties to comply with Rules 16 and 17 immediately, and drew the parties’ attention to Rules 16.4 and 17.4 which prohibit a party from relying on or presenting a document that was not properly disclosed, or presenting a witness who was not properly disclosed, except with the permission of the Tribunal. The CAD also informed the parties that the Tribunal's Rules allow for the issuance of summons to witnesses, and, if needed, these are obtainable from the Registrar’s Office.
9On October 13, 2011, the applicant appeared at the hearing, but the respondents did not. I was satisfied that the respondents received notice of the hearing. Therefore, the hearing proceeded and was completed in the respondents’ absence.
10On December 6, 2011, the Tribunal granted the respondents’ request for a new hearing, and also ordered that the next hearing dates shall be peremptory to the respondents, meaning that no adjournment or rescheduling requests will be granted.
11On January 27, 2012, the Tribunal issued a Notice of Confirmation of Rescheduled Hearing to the parties which informed them that the hearing was scheduled for May 10 and 11, 2012.
12To date, the respondents have not complied with Rules 16 and 17. Therefore, I am directing the respondents again to comply with Rules 16 and 17. If the respondents need further assistance or information to prepare for the hearing, they should review the Guide to Preparing for a Hearing before the HRTO, which may be accessed online at http://www.hrto.ca.
ORDER
13The Tribunal makes the following order and direction:
The applicant’s Request to amend her Application to include the ground of reprisal is granted.
The respondents are directed to comply with Rules 16 and 17 on disclosure of documents and witnesses immediately.
Dated at Toronto, this 7th day of May, 2012.
”signed by”________________
Ken Bhattacharjee Vice-chair