Anne Marsden v. Board of Directors of the Halton Condominium Corporation No. 41, 2013 HRTO 1214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marsden Applicant

-and-

Board of Directors of the Halton Condominium Corporation No. 41 Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 11, 2013 Citation: 2013 HRTO 1214 Indexed as: Marsden v. Board of Directors of the Halton Condominium Corporation No. 41

WRITTEN SUBMISSIONS

Anne Marsden, Applicant Self-represented

Board of Directors of the Halton Condominium Corporation No. 41, Respondent Firdaus Walele, Counsel

SimpsonWigle LLP, John M. Wigle and Firdaus H. Walele, Proposed Respondents Firdaus Walele, Counsel

The Active Group, Proposed Respondent Robert W. Dowhan, Counsel

1This Interim Decision addresses the applicant's requests to amend and add respondents to her Application.

Factual Background

2The applicant filed an Application on October 5, 2011 alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). In her Application, she made essentially three sets of allegations:

a. That the respondent has repeatedly denied her the accommodations necessary to allow safe and independent access to the common areas of the condominium. In her Application, she noted that these common areas included the front and back entrances, the pool and the parking garage.

b. That the respondent has refused to accommodate the applicant's alleged need for a recreational vehicle by allowing her to park it in guest parking. Apparently the vehicle is not able to enter the underground parking available to unit owners.

c. That the respondent has failed to post No Trespassing notices at the front and back locked doors and has failed to prosecute trespassers.

3On May 1, 2013, the applicant filed a Request for Order During Proceedings ("RFOP") seeking to add the following as respondents to the Application:

a. The property manager for her condominium corporation: The Active Group ("TAG"), and

b. The lawyers for her condominium corporation: SimpsonWigle LLP, John Wigle and Firdaus Walele (the "SimpsonWigle proposed respondents")

4The only reason provided by the applicant is found in a paragraph from her RFOP which reads in its relevant part as follows:

Review of the files associated with this matter show the Condominium Property manager and the Condominium Corporation Lawyer have as much if not more responsibility for the circumstances that led to the application under Section 34 1 (b) than the members of the Board, and therefore, they should be included as parties to the complaint.

5In the RFOP, the applicant also sought to amend her Application to include the following allegations set out in paragraphs 3, 3.1 and 3.2 of her RFOP which state as follows:

3. Since the Application was filed the respondent:

3.1 has added a new door to a common element (fitness room) without providing the known necessary accommodation (automatic door openers) for the applicant to access common element areas.

3.2 has demanded the removal of an assistive device (carrier for applicant mobility devices) from the applicant and her husband's exclusive use parking spot in the garage falsely asserting it was contrary to fire code.

6Finally, the applicant sought to amend the remedy claimed in her Application to $35,000 for loss of household income and $15,000 for loss of dignity, independence and self-respect.

7The respondent opposes the applicant's request to amend the Application. The respondent argues that the new allegations are distinct from the original narrative and that the applicant has failed to provide facts or reasons to show why the new allegations are discriminatory. With respect to the applicant's request to amend the remedy set out in the Application, the respondent recognizes that the Tribunal has permitted such amendments in previous cases. However, the respondent submits that the applicant is seeking additional compensation for a loss of income experienced by her family and not herself directly. As such, the respondent submits that the amendment to the remedy should be denied. According to the respondent, if granted, the amendment to the remedy sought would significantly protract and complicate the proceeding.

8The proposed respondent TAG opposes being added as a party. It submits that it did not provide services or information to the applicant. It also argues that the applicant has failed to provide sufficient details or any particular allegations against TAG.

9The SimpsonWigle proposed respondents also oppose being added as respondents. They submit that they have no legal relationship to the applicant and that they do not provide housing or accommodation to the applicant or anyone else. They also argue that the applicant has failed to allege any facts that could support a finding that they have violated the Code. Finally, the SimpsonWigle proposed respondents submit that an absolute privilege attaches to any communication between them and their client, the respondent in this matter. Therefore, they submit that the applicant cannot rely on these communications in legal proceedings to establish that they have breached the Code.

10On June 14, 2013, the applicant wrote to the Tribunal to indicate that she had not had the opportunity to give her full attention to the submissions filed in response to her RFOP. She stated that a hearing in writing was not appropriate as it would not allow for full argument and the calling of witnesses. She asked that, as an accommodation, the hearing of the matter be changed to an oral hearing. It was unclear from this communication whether the applicant was referring to the Tribunal's consideration of her RFOP or the consideration of the Application on the merits.

11Under Rule 3.5, the Tribunal has discretion to determine the form of hearing that is appropriate in particular circumstances. The hearing on the merits of this Application will be an in-person hearing. I find it appropriate to decide the applicant's RFOP based on the written submissions received. The applicant has filed submissions in support of her request and the respondent and proposed respondents have filed submissions in response. There is no right to reply to RFOPs under the Tribunal's Rules. In general, there is also no right to add further representations that were not included in the original submissions and no right to call witnesses.

Findings

Request to Amend

12In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and any prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

13In the circumstances, I exercise my discretion to grant the applicant's request to amend her Application to add the two new allegations reproduced in paragraph 6 above. I do not agree with the respondent that these new allegations are distinct from those set out in the initial Application. The allegation relating to the fitness room relates to the applicant's general claim that the respondent has denied her the accommodations necessary to allow safe and independent access to the common areas of the condominium. It is an alleged new example of the kind of discrimination alleged in the Application that has arisen since the filing of the Application.

14The allegation relating to the removal of the carrier for the applicant's mobility devices from her parking spot relates at least in part to the issues the applicant raised about the accommodation of her disabilities. Specifically, this new allegation relates to the applicant's access to, and the use of, parking spots to accommodate her mobility-related needs. This allegation also represents a new example of the kind of discrimination alleged in the Application that has arisen since the filing of the Application.

15I do not agree with the respondent that the applicant's request to add these allegations should be denied because she has failed to provide facts or reasons to show why the new allegations are discriminatory. At this stage, the applicant is not required to make out her claim of discrimination. She will have the onus of doing so at the hearing. At this stage, the Tribunal does not require detailed reasons as to why the alleged actions are discriminatory. In my view, the new allegations have a reasonable nexus to the Code and are further examples of the kind of discrimination alleged in the original Application.

16I also grant the applicant's request to amend the remedy she is seeking. As conceded by the respondent, the Tribunal has granted such requested amendments in the past. See, for example, Liu v. Everlink Payment Services Inc., 2013 HRTO 639 and Loney v. Combusco Enterprises, 2011 HRTO 1050. As noted by the applicant in her RFOP, she is requesting that the remedy sought in her Application be amended to correctly reflect the current cumulative losses she has incurred. I do not accept the respondent's argument that the requested amendment to the remedy sought should be denied because the remedy would compensate for losses not suffered by the applicant herself. In my view, this is a submission that is more appropriately considered by the Vice-chair hearing the case on the merits on the basis of full evidence and submissions.

17I find that the timing of the Applicant's RFOP also favours granting her amendment requests. The Applicant made her request shortly after the mediation in this case. The proceedings are still not at an advanced stage, as no hearing date has been set and no disclosure has been made. As well, in my view, granting the amendments should not unduly lengthen or complicate the proceedings as claimed by the respondent.

18The amendments are made without any determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding these issues.

19Having granted the Applicant's Request to amend, I also consider it appropriate to permit the respondent to file an amended Response. I note that the respondent has responded to the applicant's new allegations in its Response to her RFOP. However, if the respondent wishes to add anything to respond to these two new allegations, it may do so by filing an amended Response. The applicant shall also be permitted to file an amended Reply which shall be limited to replying to the respondent's responses to her two new allegations.

Request to Add Respondents

20I deny the applicant's request to add TAG and the SimpsonWigle proposed respondents as respondents to this Application.

21In Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12, the Tribunal set out the following three considerations for deciding whether to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

22As the Tribunal explained in Marchese v. Fortinos, 2009 HRTO 25 at para. 12:

The threshold for adding a party at a preliminary stage of the proceeding is a low one; the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code; see Epstein, supra, at para. 20. On the other hand, although the threshold is low, on the face of the record, there must be a higher standard than mere puffery or frivolous allegations. This must be so, not only to protect a proposed respondent, but also to demonstrate fairness: see Arzem, supra at para. 61.

23Rule 19.4(b) of the Tribunal's Rules states that a Request for an Order during Proceedings must "contain reasons for the request, including any facts relied on and submissions in support of the request." In my view, the applicant has failed to make any specific allegations that could support a finding that the proposed respondents have violated the Code. The only reason she provided to add the proposed respondents is that they "have as much if not more responsibility for the circumstances that led to the application". This bald assertion is insufficient to add the proposed respondents to this Application at this stage. The applicant has provided absolutely no particulars as to why she believes that the proposed respondents share responsibility for the alleged discriminatory actions in this case. Therefore, I find that the first part of the test in Smyth, above, is not satisfied in the circumstances.

24For these reasons, the applicant's request to add the proposed respondents is denied.

ORDER

25The Tribunal orders the following:

a. The Application is amended to include the two new allegations reproduced at para. 5 above.

b. The respondent is permitted to file an amended Response, copied to the applicant, within 21 days of the date of this Interim Decision. The applicant may file an amended Reply to the respondent's responses to the two new issues added to her Application. The applicant shall file any Reply with the Tribunal, copied to the respondent, within 35 days of this Interim Decision.

c. The applicant's request to add the proposed respondents is denied.

26I am not seized.