B.M. v. Great Wolf Lodge Niagara Falls, 2015 HRTO 904

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.M., as represented by his litigation guardian, M.M.

Applicant

-and-

Great Wolf Lodge Niagara Falls and The Jim Pattison Group

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 8, 2015

Citation: 2015 HRTO 904

Indexed as: B.M. v. Great Wolf Lodge Niagara Falls

WRITTEN SUBMISSIONS

B.M., as represented by his litigation guardian, M.M., Applicant

Lorin MacDonald, Counsel

Great Wolf Lodge Niagara Falls and The Jim Pattison Group, Respondents

Daniel McDonald, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend the substance of his Application and to add an additional respondent.

2By Application filed on April 15, 2015, the applicant’s litigation guardian alleged that the respondent Great Wolf Lodge Niagara Falls (“GWL”) discriminated against her son because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant’s litigation guardian alleged that the respondent discriminated against her son by refusing to let him use a water slide during their stay on April 10, 2015.

3The applicant’s litigation guardian was self-represented at the time that she filed her Application but she subsequently retained counsel. On June 19, 2015, the applicant’s counsel filed a Request for Order During Proceedings (“RFOP”) seeking to amend the application to include additional information relating to the alleged discrimination. In the RFOP, the applicant also sought to increase the remedy requested and to add The Jim Pattison Group (“JPG”) as a respondent.

4The Tribunal delivered the Application to GWL on June 8, 2015. Its Response is due on July 13, 2015.

5On July 2, 2015, counsel for GWL and JPG filed a Response to the applicant’s RFOP. In the Response to the RFOP, he indicated that the respondents consented to the amendment of the Application except for the amendment to the remedy sought and the applicant’s request to add JPG as a respondent.

Amendment to add respondent

6The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

7Having considered the factors set out in Smyth, I find it appropriate to grant the applicant’s request to add JPG as a respondent. The respondents submit that “The Jim Patterson Group” is a brand name and not an actual entity. Meanwhile, the applicant alleges that JPG and GWL are in a franchisor-franchisee relationship. The Tribunal will have to hear evidence relating to the exact nature of JPG as well as its relationship to GWL. The Tribunal has consistently held that the question of an alleged franchisor’s liability should be determined following evidence and argument at the hearing. See, for example, Philip v. Giant Tiger Stores, 2009 HRTO 1227, and Wozenilek v. McDonald’s Restaurants of Canada, 2010 HRTO 1120.

8For these reasons, the applicant’s request to add JPG as a respondent is granted.

REQuest to amend Application and remedy

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

10As noted above, the respondents consent to the applicant’s request to amend the substance of her Application except her request to amend the remedy she is seeking.

11Having considered the factors set out above, I grant the applicant’s request to amend the remedy sought in his Application. This Application is at a very early stage of proceedings. The respondents have yet to even file a Response. Therefore, I see no prejudice to granting the applicant’s request to amend her Application including the remedy he is seeking. The Tribunal has regularly granted such requests in past decisions up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.

12This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Order

13For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to add The Jim Pattison Group as a respondent is granted.

b. The applicant’s request to amend his Application is granted. The original Application is replaced with the amended Application attached to the applicant’s June 18, 2015 RFOP.

c. The deadline for GWL’s Response remains July 13, 2015. The respondents may file a joint Response. If JPG intends to file a separate Response, the deadline for its Response is 35 days from the date of this Interim Decision.

14I am not seized.