Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge, 2015 HRTO 600

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andy Bouchard

Applicant

-and-

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 11, 2015

Citation: 2015 HRTO 600

Indexed as: Bouchard v. 1894773 Ontario Inc. o/a Andy Meyers Lodge

WRITTEN SUBMISSIONS

Andy Bouchard, Applicant

Rhonda Howells, Representative

1894773 Ontario Inc. o/a Andy Meyers Lodge and Julian Kalka, Respondents

Nicole Smith, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend his Application.

2In his Application, the applicant alleged that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. The applicant alleged that the respondents discriminated against him by terminating his employment after he suffered a work-related injury to his shoulder and arm. He also alleged that his former supervisor made harassing or discriminatory remarks related to his disability.

3The respondents filed a Response in which they denied the allegations in the Application.

4On or about December 10, 2014, the applicant retained a paralegal representative. His representative filed a Reply on his behalf on that date.

5On December 15, 2014, the applicant’s representative filed a Request for Order During Proceedings (“RFOP”) seeking to amend the Application. On December 16, 2014, the Tribunal sent a Notice of Mediation to the parties. In the Notice, the Tribunal acknowledged the applicant’s RFOP. The Tribunal advised the parties that it would consider the applicant’s RFOP if no settlement was reached at mediation.

6The mediation was unsuccessful.

parties’ submissions

7In his RFOP, the applicant sought to amend the Application “to improve readability and correct erroneous information”. The applicant’s representative noted that the applicant did not have legal or paralegal representation at the time that he filed the Application. She stated that the initial RFOP was filed at the earliest opportunity after the applicant retained his current representative.

8The applicant’s original Application contained a one paragraph narrative. The applicant attached a newly drafted Application to his RFOP which contains a new schedule A setting out an amended narrative to his Application. The proposed amended Application also contains a schedule B which contains proposed amendments to the section of the Application that asks applicants to describe how the events set out in the Application affected them. The proposed amended Application also contains potential witnesses not named in the initial Application and a higher remedy than the one requested in the original Application.

9The respondents opposed the applicant’s request on the basis that they will suffer prejudice due to the inclusion of new allegations in the proposed amended Application, the addition of witnesses and the increased remedy sought. The respondents also submit that the requested amendments are untimely and could have been made earlier when the Reply was filed. Finally, the respondents claim that the applicant has used information from without prejudice discussions that took place during the mediation.

Analysis

10In 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, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

11Having considered these factors, I grant the applicant’s request to amend the Application. I do not agree with the respondents that the applicant is seeking to add allegations that will significantly expand the scope of the hearing. The essence of the applicant’s claim in the original Application is that the respondents discriminated against him based on his disability, that they failed to reasonably accommodate his disability, that they made harassing or discriminatory comments and that his disability was a factor in the termination of his employment. The amended Application contains a more detailed factual context for each of these allegations. It does not appear to seek the addition of allegations of new Code breaches except for an allegation that the personal respondent made a negative comment about the applicant’s injury to some of the corporate respondent’s guests. I do not find that the addition of this allegation increases the scope of the Application in any significant way.

12The respondent seeks to rely upon Cadarette v. Peel Regional Police Services Board, 2012 HRTO 2411. In that case, the Tribunal stated that there is some unfairness to respondents when an applicant retains counsel who redrafts the Application and seeks to file what is essentially a new Application. However, I note that the Tribunal did allow some of the proposed amendments in Cadarette – that is, those that did not significantly expand the issues identified in the Application. I find that the amendments proposed by the applicant in this case are analogous in scope to those permitted in Cadarette.

13I do not agree with the respondents that the applicant should not be permitted to list new witnesses in the Application. Parties are not restricted to the list of witnesses included in their filings with the Tribunal. They are free to add or remove witnesses up to the point where they are required to file a list of witnesses and witness statements prior to the hearing. If the respondents believe that the witnesses that the applicant intends to call do not have any relevant evidence to provide, they will have the opportunity to object to the witnesses’ testimony at the hearing. Their objection will be dealt with by the adjudicator assigned to the case at the appropriate time.

14With respect to the applicant’s request to increase the remedy sought, the Tribunal regularly grants such requests. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

15While the respondents claim it would not have participated in a mediation if it had been aware of the amendments, I do not agree that this is a reason to deny the applicant’s request. The applicant made his request prior to the mediation and the Tribunal advised the parties in the Notice of Mediation that it would consider the applicant’s request if the mediation was unsuccessful.

16The applicant made his request at a relatively early stage of proceeding. I do not agree that granting the request will unduly lengthen or complicate the proceedings as claimed by the respondents.

17As a final point, I note that the respondents have not provided any details regarding information allegedly used by the applicant that he acquired during the mediation. If the respondents believe that the applicant is seeking to rely upon confidential information disclosed by the respondents during the mediation, they should raise an objection to the use of this information at the hearing of the Application.

18For the reasons set out above, I grant the applicant’s request to amend his Application.

Order

19For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application is granted. The original Application will be replaced by the amended Application filed with the applicant’s March 20, 2015 RFOP.

b. If the respondents wish to make any additional submissions in response to the amendments, they may do so within 21 days of the date of this Interim Decision. The applicant may file a Reply to any amended Response filed by the respondents within 14 days of receiving the respondents’ amended Response.

20I am not seized.