Kahraman v. Clarington Public Library Board (Municipality), 2014 HRTO 885

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Kahraman

Applicant

-and-

The Municipality of Clarington Public Library Board

Respondent

INTERIM DECISION

Adjudicator: Alison Renton Date: June 17, 2014 Citation: 2014 HRTO 885 Indexed as: Kahraman v. Clarington Public Library Board (Municipality)

WRITTEN SUBMISSIONS

Daniel Kahraman, Applicant Brenda Culbert, Counsel

Linda Del Grande, Respondent Angela Rae, Counsel

The Municipality of Clarington Public Library Board, Intervenor Angela Rae, Counsel

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services on the grounds of sexual orientation. The applicant alleges that he was unable to access various internet websites at the Courtice public library due to censorship. He alleges that he wrote to a librarian, Linda Del Grande, who appeared to be the manager of support services concerning his issues, but he did not receive a response. The applicant named only the librarian as a respondent.

2In an earlier Interim Decision, 2013 HRTO 1636, the Tribunal added the Municipality of Clarington Public Library ("the library") as an intervenor. The Tribunal denied the librarian and library's request for a Summary Hearing by Registrar's letter dated April 22, 2014.

3Following mediation, the applicant filed a Request for Order During Proceedings ("RFOP") to add the library as a respondent and to amend the remedies that he seeks in the event that his Application is upheld. Specifically, he seeks to withdraw his request that the librarian be dismissed and seeks to include, for the first time, a monetary remedy of $2,500.00.

4The librarian and the library filed a Response to the RFOP and filed a RFOP of their own. In their RFOP, the librarian and library request that the Tribunal remove the librarian as a personal respondent because she was acting within the scope of her employment in relation to the allegations. In their Response to the applicant's RFOP, they consent to the withdrawal of the remedy requesting the librarian's dismissal, but object to the monetary compensation being sought. In this regard, they submit that the requests to amend should have been made much sooner, as the requests were not made until after mediation was held and after they filed their request for Summary Hearing. This request is "clearly unfair", they submit.

5The applicant, who is no longer represented by counsel, has not responded to the library and librarian's RFOP and the time for doing so has elapsed.

The applicant's request to amend his Application

6As the library and the librarian do not oppose the library being added as a respondent, and given that the file has not yet been scheduled for hearing, I have determined that the library can be added as a respondent. The style of cause is amended accordingly.

7The library has the option, of course, to file a Response to the Application. However, the library may decide to adopt the Response that has already been filed. If it intends to adopt the Response that has already been filed, the library has 7 days from the date of this Interim Decision to email the Tribunal, copying the applicant, confirming this position. If the library intends to file a new Response, it has until June 27, 2014 to file a Response. Rule 1.7(a) permits the Tribunal to lengthen or shorten any time limit in the Tribunal's Rules of Procedures and since the library has been involved in this matter for some time, I have exercised my discretion to shorten the library's time to file a Response. Similarly, the applicant will have a shortened time, 7 days, from the date the library files a new Response to file a Reply.

8Further, the applicant is permitted to amend the remedies in his Application as requested. This includes withdrawing the request that the librarian be dismissed and allowing the monetary claim to $2,500.00.

9As set out in Ibrahim v. Hilton Toronto, 2012 HRTO 740 at para. 16:

In Wozenilek v. 7-Eleven, 2010 HRTO 407, the Tribunal stated at para. 26 that it would consider the following factors in deciding whether or not to amend a pleading: (a) whether the amendment would occasion actual prejudice to the other party; (b) fairness; (c) the conduct of the party seeking the amendment; and (d) the impact of the proposed amendment on the course of the hearing and any other parties.

10While the library and the librarian vigorously oppose the applicant now being able to seek monetary relief, in my view, given the timing of the request, which is the same time the applicant seeks to add the library as a respondent and is within one year of the allegations in his Application, there is little, if any, prejudice to the library and the librarian if this amendment is granted. Furthermore I note that the overwhelming majority of Applications filed with the Tribunal seek monetary compensation, and that the Tribunal regularly orders monetary remedies if an Application is upheld.

The request to remove the librarian as a respondent

11I also find it appropriate to remove the librarian as a respondent to the Application and the style of cause is amended accordingly. The nature of the allegations about the librarian are that her alleged actions occurred within the scope of her employment. The library not only asserts this, but says that it is liable for the librarian's actions, in the event the Application is upheld. The applicant did not respond to this RFOP.

order

12The Tribunal orders the following:

a. The library shall be added as a respondent. It has 7 days from the date of this Interim Decision to email the Tribunal, copying the applicant, to confirm whether or not it will adopt the Response that has already been filed. If the library intends to file a new Response, it has until June 27, 2014 to file a Response;

b. If the library files a new Response, the applicant has 7 days from the date he receives the library's Response to file a Reply with the Tribunal, copying the respondent's counsel;

c. The remedies in the Application shall be amended:

• To withdraw the request that the librarian be dismissed;
• To include monetary compensation in the amount of $2,500.00; and

d. The librarian, Linda Del Grande, is removed as a respondent.

13I am not seized with this matter.