HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Izabella Wozniczka
Applicant
-and-
The Polish Mutual Benefit Society and Ewa Gulbinowicz
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Wozniczka v. The Polish Mutual Benefit Society
APPEARANCES
Izabella Wozniczka, Applicant
Jamie McGinnis, Counsel
The Polish Mutual Benefit Society and Ewa Gulbinowicz, Respondents
James Gamble, Representative
1This is an Application filed on October 5, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and association with a person identified by a prohibited ground of discrimination. The applicant and respondents have each filed a Request for an Order During Proceedings. This Interim Decision seeks clarification regarding the status of the respondents’ representative and addresses the applicant’s Request.
STATUS OF THE RESPONDENTS’ REPRESENTATIVE
2As noted above, the respondents filed a Request for an Order During Proceedings, which was filed by their representative on October 30, 2012. However, the Tribunal’s Policy on Representation before the HRTO sets out who may act as representatives before the Tribunal and it is not clear that the respondents’ representative is entitled to do so. The policy states as follows:
A party or witness before the Human Rights Tribunal of Ontario (HRTO) may be self-represented or represented by a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC).
A party or witness may be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements. The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. The LSUC’s website contains a complete list of the approved exemptions.
A person who is not licensed, whose license is suspended or who is not in an exempted category will not be permitted to act as a representative in an HRTO proceeding.
3The respondents’ representative has not indicated that he is licensed by the Law Society of Upper Canada as a lawyer or paralegal and describes himself as an “Agent, Facilitator and Advocate” working for a company named “Solutions”. Thus, is appears that the respondents’ representative is a third party advocate, who is presumably to be paid for his efforts. In these circumstances, it does not appear that the respondents’ representative comes within a category or exemption described in the Tribunal’s Policy on Representation before the HRTO or the Law Society’s approved exemptions. As stated in the policy, the Tribunal does not permit anyone who does not come within the permitted categories or exemptions to act as a representative in its proceedings. Consequently, the Tribunal will not consider submissions from the respondents’ representative until the Tribunal is satisfied that he is entitled to act as a representative before the Tribunal.
THE APPLICANT’S REQUEST
4The applicant filed a Request for an Order During Proceedings on November 30, 2012 (“the Request”). The respondents have not responded to the Request and the time for doing so has passed. In the Request, the applicant seeks to amend the Application by adding allegations of reprisals committed by the respondents after the Application was filed and to increase the general damages the applicant requests by $5,000.00. The alleged reprisals consist of two e-mail messages from the individual respondent, dated October 20, 2012 and October 22, 2012, respectively. The first was to the applicant, in Polish, and the second, to the applicant’s father-in-law, in English. The applicant provided a translation, using an on-line translator, of the first message. The applicant submitted that in the messages the individual respondent accused the applicant and her husband of criminal behaviour and threatened to report the applicant to the police.
DECISION
5In determining requests to amend pleadings 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 Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066.
6The alleged reprisals occurred after the applicant filed the Application and, while not explicitly stated, the applicant’s position appears to be that the messages amount to threats against the applicant because she filed the Application. In these circumstances, it is preferable to add these allegations to the Application, rather than to require the applicant to file a separate Application. The Request to amend comes early in the proceeding and the respondents will clearly be aware of the e-mail messages in question and the circumstances in which the individual respondent sent them. Accordingly, no prejudice to the respondents will arise if the Tribunal allows the proposed amendments. Allowing the amendment does not indicate that the Tribunal considers the allegation to have merit, i.e., that the applicant will be able to prove the elements necessary to establish a reprisal (See: Noble v. York University, 2010 HRTO 878 at paragraphs 31 to 35), which is a matter to be determined at a hearing.
ORDER
7The Tribunal orders as follows:
Within 14 days of the date of this Interim Decision, the respondent or the respondent’s representative is directed to immediately identify, the category or exemption, as described in the Tribunal’s Policy on Representation before the HRTO or by the Law Society of Upper Canada, within which the respondent’s representative comes that would permit him to act as a representative before the Tribunal; and,
The applicant’s request to amend the Application is granted. The respondent may file an Amended Response addressing the added allegations within 35 days of the date of this Interim Decision.
8I am not seized.
Dated at Toronto, this 10th day of January, 2013.
“Signed by”
Douglas Sanderson
Vice-chair