Wolfe v. Toronto (City), 2015 HRTO 1223

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patricia Wolfe Applicant

-and-

City of Toronto Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: September 15, 2015 Citation: 2015 HRTO 1223 Indexed as: Wolfe v. Toronto (City)

WRITTEN SUBMISSIONS

Patricia Lynn Wolfe, Applicant Jamie McGinnis, Counsel

City of Toronto, Respondent Antonella Ceddia, Counsel

Introduction

1This Application alleges discrimination with respect to service because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The hearing of this Application is scheduled for December 8 and 9, 2015.

REQUEST TO AMEND APPLICATION

3On November 17, 2014, the applicant filed a Reply. The Reply contained new information about incidents at the Cummer Park Community Centre described in the original Application. In addition, the Reply contained new allegations of events that occurred at the Douglas Snow Aquatic Centre and covered a period of time that was after the date when the Application was filed. In an email to the Tribunal, the respondent took the position that the new allegations ought to be excluded from the Reply as they were not properly before the Tribunal.

4On March 18, 2015, the applicant filed a Request for an Order During Proceedings (“RFOP”) seeking to amend the Application. The allegations that the applicant is seeking to include as amendments are the same as those that were contained in her Reply.

5The Tribunal acknowledges that the delay in considering the RFOP is the fault of the Tribunal. The Tribunal apologizes to the parties for the burden that this delay has caused.

6The applicant submits that she was not represented at the time that she filed the Application and Reply. She submits that the RFOP was filed within one year of the date of the incidents alleged and that rather than filing a new Application and requesting that the two Applications be heard together, it is more expeditious to amend the current Application. The respondent is the same organization and the allegations are a continuum of events outlined in the Application.

7The applicant submits that there is sufficient time before the hearing date for the respondent to properly respond to the new allegations.

8The respondent opposes the RFOP. The respondent submits that the new allegations expand the scope of the Application too broadly. The respondent submits that because the allegations pertain to alleged incidents at another recreation facility and involve a different context, they will require the respondent to conclude another investigation, call different witnesses and produce new documents and as a result, the respondent will be prejudiced if the amendments are allowed.

9In determining requests to amend applications, 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, for example, Wolde-Yohannes v. Marconi Club of London, 2014 HRTO 1654; Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

10In the original Application, it is alleged that the respondent failed to accommodate the applicant’s disability-related needs during the period from July 2013 to May 2014 when she attended the Cummer Park Community Centre. The applicant is seeking to amend the Application to include allegations that the respondent failed to accommodate her disability-related needs while she was using the facilities of Douglas Snow Aquatic Centre after the Cummer Park Community Centre was closed for renovations. The proposed amendments with respect to Douglas Snow Aquatic Centre cover the period of time from July 2014 to October 2014.

11As noted, the respondent was made aware of the new allegations on November 17, 2014 when the Reply was filed. The November 18, 2014 email from the respondent acknowledged that the Reply contained new allegations. In my view, particularly in light of the fact that the respondent was already on notice from the Reply that the applicant intended to raise further allegations pertaining to her experiences at Douglas Snow Aquatic Centre, the request to amend was made in a timely manner.

12The respondent objects to the RFOP on the basis that the proposed amendments are new and unrelated to the original Application. I disagree. The allegations set out in the proposed amendments, as I understand them, relate to access to change rooms and the applicant’s movement between the change rooms and the pool. These appear to be very similar in nature to the allegations that are made in the original Application with respect to incidents at Cummer Park Community Centre. It is my view that although the proposed amendments cover alleged incidents that occurred at a different recreation centre run by the respondent, the nature of the allegations arising from the proposed amendments is substantially a continuation of the allegations as originally raised in the Application. Also, the applicant could not have included these allegations in her Application as they relate to alleged incidents that occurred after she filed her Application.

13The respondent submits that the applicant’s proposed amendments would significantly expand the scope of these proceeding and cause it prejudice in responding. While I appreciate that the respondent will need to gather facts relevant to the new allegations in order to properly respond, and that this will entail speaking to new witnesses and will create additional expense, this needs to be considered in light of possible alternatives to having the new allegations filed at the Tribunal.

14The RFOP was filed within one year of the date of the last incident detailed in the proposed amendments. As a result, the applicant could possibly file a new Application raising the issues described in the proposed amendments, which would entail the same investigation, time and expense described by the respondent in objection to the proposed amendments. The Tribunal would then be faced with two Applications involving the same parties with potential overlap of facts, such as the nature of the applicant’s disabilities and the needs for accommodation arising from her disabilities. The Tribunal would consider either joining these two Applications to have them heard together or allow them to proceed separately with resulting duplication and waste of resources for the Tribunal and the parties.

15Rule 1.7(c) 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”. In my view, allowing an amendment of the existing Application to address allegations of continuing discrimination is the more fair, just and expeditious way of proceeding.

16Accordingly, in my view, the nature of the proposed amendments as raising allegations of continuing discrimination that post-date the filing of the original Application, the timing of the RFOP, and the lack of any real or substantial prejudice to the respondent all militate in favour of granting the applicant’s request to amend.

17As the hearing of this matter is scheduled for December 8 and 9, 2015, the Tribunal expects that the timelines for serving and filing documents and witness statements may need to be adjusted and invites the parties to request a case conference to discuss a suitable time line.

ORDER

18The applicant’s Request to Amend the Application is granted and the Application is amended by appending to the Application as originally filed the detailed submissions filed by the applicant in the RFOP on March 18, 2015.

19Within 28 calendar days from the date of this Interim Decision, the respondent shall serve and file its Response to these amendments. The further Response can be served and filed as an addendum to the Schedule A to the Response as originally filed.

20Within a further 7 calendar days from receipt of the respondent’s Response to the amendments, the applicant shall serve and file any proper Reply in accordance with Rule 9.