Smith v. Burger King Restaurants of Canada, 2013 HRTO 686

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Smith Applicant

-and-

Burger King Restaurants of Canada Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: April 25, 2013

Citation: 2013 HRTO 686

Indexed as: Smith v. Burger King Restaurants of Canada

APPEARANCES

Michael Smith, Applicant Self-represented

Burger King Restaurants of Canada, Respondent Andrew N. Zabrovsky, Counsel

1This is an Application filed 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 disability.

2The Application (Form 1) was filed on November 15, 2011. The respondent filed its Response (Form 2) together with a Request for Order During Proceeding and a Request for Summary Hearing. In both Requests the respondent seeks the early dismissal of the Application because it does not set out a prima facie case or because it has no reasonable prospect of success.

3The applicant has responded to the respondent’s Requests, as directed in a Case Assessment Direction (“CAD”) issued on March 19, 2012, and appears to agree that a Summary Hearing should be held. The applicant also filed a Request to amend the Application to include allegations of ongoing sexual harassment by another employee of the respondent which he reported to the respondent. The respondent opposes the Request.

REQUEST FOR SUMMARY HEARING

4The Request is denied. It is not clear to me that the applicant’s apparent consent is informed by a complete understanding of the Summary Hearing process. In any case the Tribunal is not bound by the parties’ agreement on such issues. In considering the respondent’s Requests I initially considered the Application as originally filed. I would not have granted the Request as regards the Application as filed by the applicant. The Tribunal’s Rules provide that it need provide reasons where such a Request is denied and in this case it would not be appropriate to do so. See Rule 19A(6).

THE APPLICANT’S REQUEST

5In determining requests to amend an application filed under s. 34 of the Code, the Tribunal considers the nature of the proposed amendments, the time of the request and 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.

6The applicant’s Request is granted. While I agree with the respondent that this new allegation is unconnected and raises entirely new issues from the original Application, I also observe that the Request was made at an early stage of the proceeding prior to when mediation would have taken place had the parties agreed to mediation and well prior to the parties having to begin their disclosure to each other. In all of the circumstances I find that it is fair, just and expeditious to allow the amendment of the Application at this early stage of the proceeding. I also do not accept the respondent’s submission that this Request is an attempt to avoid the Summary Hearing. I observe as the respondent did that the applicant appears to have agreed to the Summary Hearing. In any case the applicant’s Request to amend the Application had no bearing on my determinations with respect to the Respondent’s Requests.

NEXT STEPS

7In his Application the applicant indicated his consent to mediation. The respondent has not. The respondent is directed to indicate whether or not it is willing to attend mediation within 7 days of the date of this Interim Decision failing which this case will be scheduled for a two-day hearing in London Ontario.

ORDER

8The Tribunal makes the following order:

a. The Application is amended to include the allegations of sexual harassment and solicitation;

b. The respondent may file an amended Response to the Application within 35 days of the date of this Interim Decision;

c. The respondent is directed to advise whether it consents to mediation within 7 days of the date of this Interim Decision, failing which this matter will be scheduled for a two-day hearing in London, Ontario.

9I am not seized.