Marsden v. Board of Directors of the Halton Condominium Corporation No. 41, 2013 HRTO 1727

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 and The Active Group

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: October 11, 2013 Citation: 2013 HRTO 1727 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

1This Interim Decision addresses the issues raised in the September 10, 2013 Request for an Order During Proceedings (“RFOP”) filed by the respondent Board of Directors of the Halton Condominium Corporation No. 41 (“HCC No. 41”). It also addresses the issues raised in the applicant’s October 9, 2013 e-mail to the Tribunal.

2The Tribunal notes that this Application has been the subject of numerous RFOPs filed by the applicant, and one by HCC No. 41, as well as several interim decisions by the Tribunal relating to the scope of the Application and the Responses to it. The Tribunal expects that this Interim Decision will provide the final directions required to finalize the pleadings in this matter. The Tribunal expects that the parties will not file any further RFOPs relating to this issue. Any further issues relating to the scope of the Application and the Responses to it will be addressed at the hearing.

HCC No. 41’s RFOP

3In its RFOP, HCC No. 41 sought to amend its amended Response, to amend the style of cause, and also sought permission to respond to certain new allegations raised by the applicant.

Amendment of amended response

4HCC No. 41 sought to amend factual inaccuracies contained in the amended Response it filed on August 1, 2013. In its amended Response, HCC No. 41 stated that its fitness room door had not been replaced. HCC No. 41 seeks to amend its amended Response to include information obtained from its contractor after it filed the amended Response. HCC No. 41 seeks to amend its Response to add the following:

It is the respondent’s position that they spoke with the contractor who carried out the renovations to the fitness room door in order to confirm that the fitness room door was replaced. Subsequent to the filing of the Amended Response on August 1, 1013, the Respondent became aware that the fitness room door was in fact replaced. The door to the fitness room was replaced with a door that had glass windows because of health and safety concerns given the equipment in the fitness room is used at owners’ risk. The fitness room door that was replaced had a knob handle, as did the previous door. The respondent later took steps to replace the knob handle with a lever handle.

The Respondent took steps to install an automatic door opener to the fitness room door on or about August 26, 2013.

5The applicant opposes HCC No. 41’s request on the basis that the inaccuracies are a matter of credibility to be addressed at the hearing.

6In determining a request to amend a pleading, 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 other party, and the impact on the course of the hearing. See Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 535; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada, 2009 HRTO 926.

7Having considered these factors, I grant the HCC No. 41’s request to amend its amended Response. The requested amendment is minimal and only corrects certain inaccuracies in the amended Response. In my view, it is important to ensure that pleadings before the Tribunal are accurate and no prejudice will be caused to the applicant by the amendment.

Style of Cause

8HCC No. 41 seeks to amend the style of cause to refer to “Halton Condominium Corporation No. 41” instead of the “Board of Directors of the Halton Condominium Corporation No. 41”. HCC No. 41 submits that the Board of Directors is not in fact a legal entity and that the appropriate legal entity is Halton Condominium Corporation No. 41. The applicant opposes the request to amend the style of cause.

9I find that this issue should be dealt with by the adjudicator assigned to hear this case on its merits.

Response to New Allegations

10HCC No. 41 seeks permission to respond to new allegations that the applicant raised in her Reply to its amended Response filed with the Tribunal on August 6, 2013. In her Reply, the applicant did raise two new allegations concerning events occurring on July 24 and 30, 2013. I find that it is just and fair to allow HCC No. 41 to respond to these new allegations.

APPLICANT’S OCTOBER 9, 2013 E-MAIL

11In her e-mail the applicant questioned whether the Response filed by the respondent The Action Group (“TAG”) was properly filed and complete. She also sought clarification of the deadline for her Reply to TAG’s Response.

12The Tribunal’s Interim Decision, 2013 HRTO 1462, dated August 27, 2013, directed that TAG’s Response was due by September 17, 2013. However, the Notice of Application sent by the Tribunal to TAG mistakenly set out October 1, 2013 as the date by which TAG’s Response was due. Under Rule 8.1 of the Tribunal’s Rules of Procedure, a Response need not be delivered to the other parties. It is the Tribunal that delivers the Response to other parties. Therefore, in these circumstances, the Tribunal accepts the Response as properly filed on September 27, 2013 notwithstanding the fact that TAG initially sent the Response to the applicant by e-mail which was later recalled.

13In the circumstances, the Tribunal exercises its discretion to extend the date of the applicant’s Reply to 14 days from the date of this Interim Decision.

orders

14The Tribunal orders as follows:

a. HCC No. 41’s request to amend its amended Response to include the information at paragraph 3 above is granted;

b. HCC No. 41’s request to amend the style of cause shall be addressed by the adjudicator assigned to hear the case on its merits;

c. HCC No. 41 is granted permission to respond to the new allegations raised in the applicant’s August 6, 2013 Reply concerning events allegedly occurring on July 24 and 30, 2013. HCC No. 41 shall file its Response to these allegations with the Tribunal, with a copy to the other parties, within 21 days of the date of this Interim Decision; and

d. The applicant must file a Reply to the Response filed by TAG within 14 days of the date of this Interim Decision.

15I am not seized.