HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fidela Amurao Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services Respondent
INTERIM DECISION
Adjudicator: Paul Aterman Date: February 21, 2013 Citation: 2013 HRTO 293 Indexed as: Amurao v. Ontario (Community and Social Services)
WRITTEN SUBMISSIONS
Fidela Amurao, Applicant Ron Franklin, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent Jennifer Richards, Counsel
Introduction
1This decision deals with a Request by the applicant to amend her Application.
2The Application was filed on August 24, 2010 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging harassment and discrimination with respect to employment because of race, ancestry, ethnic origin, place of origin, association with a person identified by a prohibited ground under the Code and reprisal.
3The Application had been deferred because the applicant’s union had filed a grievance before the Grievance Settlement Board. When the grievance was withdrawn the applicant requested that the Application be re-activated. That request was granted in an Interim Decision, 2012 HRTO 1903.
submissions
4The applicant argues that the Application should be amended as the proposed amendments provide particulars surrounding her allegations.
5The respondent opposes any amendment of the Application on the grounds that there has been considerable delay since the Application was filed and that amending the Application now prejudices the respondent because it will create further delay. The longer the Application is delayed, the greater the risk that memories of witnesses will fade by the time the Application is heard. The respondent’s view is that the Tribunal’s Form 1 clearly instructs applicants to provide particulars when citing instances of alleged discrimination, and that the applicant should have provided the particulars when she filed her Application.
ANALYSIS
6In determining requests to amend applications under section 34 of the Code, 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 Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563).
7In this case the applicant is not seeking to introduce new allegations through the proposed amendments. Rather, she is providing details that she claims will support existing allegations. The applicant self-identifies as Asian and alleges that she and co-workers who self-identify as Black were subjected to harsher standards of discipline than co-workers who self-identify as White. In the proposed amended Application she cites a number of examples where she alleges the respondent treated workplace misconduct differentially based on race, ethnic origin or place of origin.
8While I appreciate the respondent’s concern with delay, to date most of the delay in this case is because the Application was deferred and thus there was little scope for the Application to move forward while proceedings continued before the Grievance Settlement Board. The proposed amendments come at a relatively early stage in the proceedings in that the parties have agreed to try mediation and that session has not yet been scheduled.
9In my view it is appropriate at this stage to allow the Application to be amended, particularly because the proposed amendments amplify existing allegations rather than introducing new ones, and because the proceedings have not yet advanced significantly.
order
10The Request to amend the Application is granted. The version of the Application submitted under cover of applicant counsel’s letter of January 2, 2013 is accepted as the Application before the Tribunal.
11The respondent will have 28 days from the date of this Interim Decision to file its amended Response with the Tribunal in accordance with Rule 8 of the Tribunal’s Rules of Procedure.
12The applicant will have 14 days from the date she receives an amended Response to deliver her Reply to the respondent and file it with the Tribunal in accordance with Rule 9.
13The Registrar is requested to schedule a date for mediation after any amended Response and Reply have been filed.
Dated at Toronto, this 21st day of February, 2013.
”signed by”
Paul Aterman Vice-chair