Neallos Wedemire v. McDonald’s Restaurants of Canada Ltd., 2013 HRTO 613

Human Rights Tribunal of Ontario

Between:

Neallos Wedemire Applicant

-and-

McDonald’s Restaurants of Canada Ltd. Respondent

Interim Decision

Adjudicator: Ena Chadha Date: April 12, 2013 Citation: 2013 HRTO 613 Indexed as: Wedemire v. McDonald’s Restaurant of Canada Ltd.

Written Submissions

Neallos Wedemire, Applicant Self-represented

McDonald’s Restaurant of Canada Ltd., Respondent Donna Polgar, Counsel

1The applicant filed this Application on August 8, 2012, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services, goods and facilities on the basis of race and colour.

2The respondent filed a Response on September 14, 2012, denying the allegations. The Response notes that the Application identifies the corporate franchisor McDonald’s Restaurants of Canada Ltd. as the respondent when, in fact, the restaurant where the alleged events occurred is a franchise owned and operated by Bartlett Family Restaurants Inc., the entity which should be substituted as the proper respondent in this matter.

3On March 8, 2013, the respondent filed a Request for an Order During Proceedings (“RFOP”) asking that it be allowed to amend its Response by correcting the content of paragraphs 12 and 14 in its response narrative. The respondent submits that the “errors were entirely inadvertent, and arose solely from counsel’s attempt to compile multiple documents into a unified narrative”. The respondent further submits that there was no intent to mislead the Tribunal or the applicant.

4The applicant wrote to the Tribunal in response to the RFOP stating that he is opposed to the proposed amendment. The applicant submits that the respondent and its witnesses had ample time to review their statements and, therefore, this request is an attempt to hide the truth from the Tribunal.

Analysis & Decision

5The respondent seeks to amend its Response by substituting certain details in two paragraphs to correct inaccuracies which the respondent submits were as a result of counsel’s error. The respondent expresses concern that if these inaccuracies are left uncorrected, there is a risk that the witnesses’ evidence will be tainted through no fault of their own.

6Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

7As stated in Lachance v. McDonald’s Restaurants of Canada Limited, 2012 HRTO 2091, in determining requests to amend responses, the Tribunal should consider the timing of the amendment, scope of the amendment, reasons for the amendment and any potential harm to the applicant:

8I have reviewed the respondent’s proposed amendments and considered the applicant’s submissions. The hearing in this matter is scheduled for October 2013 and the parties have yet to exchange disclosure. The amendments appear to be limited in number and nature and, based on the respondent’s submissions, appear to be corrections of errors caused during the course of counsel’s drafting of the narrative. As such, I see no basis to deny the respondent’s request. The applicant can raise his concerns with respect to credibility of the witnesses, the accuracy of their memories and the weight to be accorded to their oral evidence in comparison to any earlier written positions taken on their behalf during the course of cross-examination.

Order

9Accordingly, the respondent’s request to amend the Response to reflect the corrected paragraphs 12 and 14 is granted. This amendment is made without any determination by the Tribunal as to the merits of the statements/allegations and without prejudice to any position the applicant may wish to take regarding these issues at the hearing.

10There appears to be an outstanding matter with respect to the proper identity of the respondent party. It appears that Bartlett Family Restaurants Inc., as the franchisee of the restaurant that is the subject of this Application, may be the proper respondent. As such, within 7 days of the date of this Interim Decision, counsel for the respondent is required to write to the Tribunal, copied to the applicant, 1.) providing the full contact information for Bartlett Family Restaurants Inc., 2.) confirming that a copy of this Interim Decision, the Application, Response, Reply, RFOP and applicant’s submissions have been provided to Bartlett Family Restaurants Inc. and 3.) advising whether counsel represents Bartlett Family Restaurants Inc. and if not, the name and contact information of the representative.

11Within 21 days of the date of this Interim Decision, the parties and Bartlett Family Restaurants Inc. are required to write to the Tribunal, copied to each other, setting out whether or not they consent to removing McDonald’s Restaurants of Canada Ltd. and substituting Bartlett Family Restaurants Inc. as the the respondent party.

12I am not seized.