HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ruhaina Remtulla
Applicant
-and-
The Athletic Club (Trainyards) Inc. and Controlex Corporation
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Remtulla v. The Athletic Club (Trainyards) Inc.
WRITTEN SUBMISSIONS
Ruhaina Remtulla, Applicant
Alayna Miller, Counsel
The Athletic Club (Trainyards) Inc., Respondent
Brian MacDonald, Counsel
Controlex Corporation, Respondent
Jonathan Richardson, Counsel
Introduction
1This Interim Decision addresses the applicant’s request to add a respondent and her request to amend her Application.
2By Application filed January 8, 2013, the applicant alleged that The Athletic Club (Trainyards) Inc. (“TAC”) discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant is a member of TAC, a fitness club. She was self-represented when she drafted her Application and retained counsel in July 2013. In her Application, the applicant alleged that TAC discriminated against her by failing to accommodate her disability because it allegedly provided inadequate lighting in zumba classes. The applicant also alleged that TAC failed to provide adequate accessible parking for members.
REquest to add respondent
3On August 30, 2013, the applicant filed a Request for an Order During Proceedings (“RFOP #1”) in which she sought to add Controlex Corporation (“Controlex”) as a respondent.
4The applicant submitted that Controlex should be added as a respondent because it is the landlord of TAC. She submitted that, as such, it has the sole authority to resolve the accessible parking issue raised in her Application.
5In its Response to RFOP #1, TAC did not object to adding Controlex as a respondent. In its Response to the Application, TAC denied that it was responsible for parking at the club’s Trainyards location. It stated that it has requested that Controlex address the accessible parking issue. However, according to TAC, the resolution of the issue is ultimately the responsibility of Controlex.
6Controlex filed a Response with the Tribunal on September 17, 2013, despite not being required to do so until the Tribunal determined RFOP #1. In its response, Controlex denied that it has discriminated against the applicant. In particular, it claims that it was TAC that provided additional accessible parking spaces for its members on its own initiative.
7The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12. In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
8Having considered these three factors, I find that Controlex should be added as a respondent. In my view, the applicant has made allegations that could support a finding that Controlex has violated the Code. It will be up to the adjudicator hearing the case on the merits to determine which entity is responsible for the parking spaces referred to in the Application, whether the applicant has established discrimination based on disability and if so whether reasonable accommodation was provided for the applicant. A further factor that weighs in favour of adding Controlex as a respondent is that this Application is not at an advanced stage of proceedings as it is not scheduled to be heard until March 2014. Controlex has not asserted any prejudice and, in the circumstances, I find that Controlex will suffer no substantial prejudice from being added at this stage of proceeding.
Request to Amend application
9By Request for an Order During Proceedings dated September 4, 2013 (RFOP #2), the applicant sought to amend her Application to include instances of the TAC’s alleged failure to accommodate her disability that occurred after the filing of the Application. She also sought to refer to documents that TAC provided to her after the applicant was filed, including TAC policies and training manuals. Finally, she sought to amend the remedies sought in her Application to increase the amount of monetary compensation and to add non-monetary remedies.
10By letter dated September 13, 2013, TAC advised that it did not oppose the applicant’s request to amend her Application as set out in RFOP #2. However, TAC indicated that it reserved the right to amend its Response. It also indicated that it reserved the right to produce additional relevant documents since it has already made the disclosure required under Rule 16.1 of the Tribunal’s Rules of Procedure.
11In 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 the 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.
12Having considered these factors, I grant the applicant’s request to amend the Application. The amendments relate to instances of alleged ongoing discrimination by TAC occurring after the Application was filed. Therefore, I find that they relate directly to the substance of the Application. As well, TAC’s consent to the amendment indicates that it will not suffer any prejudice due to the amendment as long as it has the opportunity to amend its Response. The amendment does not relate to any allegations against Controlex. Therefore, Controlex also will suffer no prejudice from granting the applicant’s request to amend. For these reasons, I grant the applicant’s to request to add the allegations against TAC detailed in RFOP #2.
13I also grant the applicant’s request to amend the remedies she is seeking. The Tribunal has frequently granted such requests in the past. See, for example, Liu v. Everlink Payment Services Inc., 2013 HRTO 639, and Loney v. Combusco Enterprises, 2011 HRTO 1050.
Order
14For the reasons set out above, the Tribunal orders:
a. The applicant’s Request to add Controlex as a respondent is granted. Controlex’s Response will be delivered to the other parties.
b. The applicant’s Request to amend the Application to include the information contained in RFOP #2 is granted.
c. TAC is permitted to file an amended Response, copied to the other parties, within 21 days of the date of this Interim Decision. The applicant may file an amended Reply to respond to Controlex’s Response and any amended Response filed by TAC. The applicant shall file any Reply with the Tribunal, copied to the respondents, within 35 days of this Interim Decision.
d. Controlex shall make the disclosure required under Rule 16.1 of the Tribunal’s Rules of Procedure by November 15, 2013.
e. The deadline for the parties’ compliance with the disclosure required under Rules 16.2 and 17 remains unchanged. As indicated in the Notice of Hearing, the deadline for this disclosure is January 17, 2014.
f. The parties shall deliver to Controlex by November 15, 2013 any documents disclosed to each other under Rule 16.1 of the Tribunal’s Rules.
Dated at Toronto, this 25th day of September, 2013.
“Signed by”
Jo-Anne Pickel
Vice-chair