Bussey v. Cedar Range Management Inc., 2015 HRTO 559

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Bussey Applicant

-and-

Cedar Range Management Inc., Glen Fahselt, Nancy Vanthuyne, Luke Vanthuyne and Lisa Puskas Respondents

A N D B E T W E E N:

Paul Bussey Applicant

-and-

Cedar Range Management Inc., Glen Fahselt, Nancy Vanthuyne, Luke Vanthuyne and Lisa Puskas Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: May 4, 2015 Citation: 2015 HRTO 559 Indexed As: Bussey v. Cedar Range Management Inc.

WRITTEN SUBMISSIONS

Paula Bussey, Applicant Self-represented

Paul Bussey, Applicant Self-represented

Cedar Range Management Inc., Glen Fahselt, Nancy Vanthuyne, Luke Vanthuyne and Lisa Marie Puskas, Respondents Viktor Kvrgic, Representative

Introduction

1These Applications allege:

a. reprisal and discrimination with respect to housing because of disability, sex, sexual solicitation or advances, marital status and association contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) (2014-18319-I) and

b. reprisal and discrimination with respect to housing because of disability, marital status and association (2014-19456-I).

2This Interim Decision addresses the applicants’ and respondents’ Form 10 Requests for an Order During Proceedings (“RFOP”), respectively, as well as information respecting one of the respondents.

requests

Consolidation

3First, all parties have agreed that these Applications should be consolidated.

Removal of James Terrance Webster as a Respondent

4Second, the respondents request that James Terrance Webster be removed as a respondent in both these Applications.

Amendment of Application – 2014-18319-I

5Third, in the December 18, 2014 RFOP, the applicant Ms. Bussey requests permission to amend her Application to include additional allegations of discrimination since the Application was filed, as well as to add to the remedy claimed.

Removal of Lisa Puskas as a Respondent in both Applications

6The applicants seek to have Lisa Puskas removed as a respondent (“the removal RFOP”). The respondents object to the removal of Lisa Puskas as a respondent.

Request for Extension of Time to file Reply – 2014-19456-I

7Fourth, the applicant Mr. Bussey requested in his March 9, 2015 RFOP and again in his April 8, 2015 RFOP an extension of time to file his Reply.

Request for Production – 2014-19456-I

8Fifth, the applicant Mr. Bussey requested in his March 9, 2015 RFOP production of documents.

law and analysis

Consolidation

9Rule 1.7(d) 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 consolidate or hear applications together.

10In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928, which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

a. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

b. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

c. Whether there are common issues of fact or law.

11Given that the parties consent and that there are overlapping parties and facts, the Tribunal orders these Applications be processed and heard together.

Removal of James Terrance Webster as a Respondent

12All parties consented to the removal of James Terrance Webster as a respondent due to his death. Mr. Webster is removed and the styles of cause are amended accordingly.

Amend Application – 2014-18319-I

13In considering requests to amend applications 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, for example, 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.

14With respect to the timing of the requests alone, the hearing is not yet scheduled and I do not find it prejudicial to allow amendments to the Application at this stage.

15The Tribunal permits the applicant to amend her Application to include the new allegations that have occurred since the Application was filed. Given that the allegations contained in the proposed amendments are otherwise timely, to decide otherwise would require the applicant to commence a second Application that would contain many of the same facts at issue in this Application. The amendments will permit efficiency in hearing all of the applicant’s allegations at once.

16The applicant also requested she be permitted to amend her Application to Increase the monetary remedy requested and to add additional non-monetary remedies. The respondent did respond.

17These amendments to the remedies claimed are allowed in accordance with the test in Wozenilek v. 7-Eleven, 2009 HRTO 926, by “taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice.”

18The request does not raise new facts, and no hearing has been set and therefore there is no prejudice to the respondent.

19The decision to allow the amendments to the remedies claimed is not a decision with respect to whether or not the remedies requested are appropriate or will be awarded.

Removal of Lisa Puskas as a Respondent

20This is an unusual request in that it is the applicants who have requested that Lisa Puskas be removed as a respondent, whereas the respondents, including Lisa Puskas, ask that she not be removed because she is an important participant in the events outlined in the Applications.

21The respondents submitted that at this stage Lisa Puskas should not be removed because the applicants have provided no reason for her removal.

22In effect, the applicants are requesting that they be permitted to withdraw their claims against Lisa Puskas. While the Tribunal has the discretion to deny a request to withdraw it has done so only on the rarest occasions – for example when it has found that to allow a withdrawal would amount to an abuse of process. There is no reason to deny their request and it is granted. The concerns raised by the respondents and Ms. Puskas may be addressed, if necessary, by her participation in other capacities. For example, there is nothing preventing the remaining respondents from calling Ms. Puskas as a witness if they choose to do so.

Request for Extension of Time to file Reply – 2014-19456-I

23On March 16, 2015, the applicant Mr. Bussey was granted an extension to April 28, 2015 file his Reply.

24By RFOP dated April 8, 2015, he has requested an additional four months from April 28, 2015 to file his Reply due to migraines, chronic pain and vision problems. While I have considered the medical basis on which the request is made for the following reasons I do not feel a further four-month extension is appropriate or warranted.

25First, I note that Mr. Bussey has been able to prepare and file his current RFOP, which included a lot of information. He did this with the assistance of his wife and co-applicant, by dictating it to her. Although he indicates he could not dictate his Reply to her, he has provided no basis for why it was possible to do so for his RFOP but not his Reply.

26Second, I am concerned about the delay that would be caused by a further four month extension given the Tribunal’s mandate to dispose of Application in an expeditious manner. However, in light of Mr. Bussey’s medical issues, I am prepared to grant him a further extension to file his Reply to June 1, 2015.

Request for Production – 2014-19456-I

27Any request for production of documents at this stage is premature. Once a hearing date is set, the parties will be under an obligation to provide to each other their arguably relevant documents.

28If after such production takes place the male applicant still requires production of certain documents, he can renew his request to the Tribunal.

ORDER

29The Tribunal orders that:

a. Applications 2014-18319-I and 2014-19456-I are consolidated and will be processed and heard together.

b. James Terrance Webster is removed as a respondent in both Applications and the styles of cause are amended accordingly;

c. The applicant, Paula Bussey’s, Application (2014-18319-I) is amended to include the allegations set out in the RFOP, dated December 18, 2014, and she need not file an amended Application;

d. The applicants’ request to “remove” Lisa Puskas as a respondent is granted on the basis of withdrawal;

e. The respondents in file 2014-18319-I may file any amended Response to address the allegations in the December 18, 2014 RFOP within 14 days of their receipt of this Interim Decision;

f. The applicant within 14 days of her receipt of any amended Response may file any amended Reply in file 2014-18319-I; and

g. The applicant, Paul Bussey, shall file his Reply in file 2014-19456-I by no later than June 1, 2015.