Changhyun Park v. University of Ontario Institute of Technology, 2016 HRTO 116

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Changhyun Park Applicant

-and-

University of Ontario Institute of Technology, Bram Samaroo and Ryan Pitcher Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: January 25, 2016 Citation: 2016 HRTO 116 Indexed as: Park v. University of Ontario Institute of Technology

WRITTEN SUBMISSIONS

Changhyun Park, Applicant Self-represented

University of Ontario Institute of Technology, Respondent Cheryl Foy, Counsel

Bram Samaroo and Ryan Pitcher, Respondents Christopher McClelland, Counsel

1This Application, filed on June 4, 2014 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to goods, services and facilities because of race, colour, ethnic origin and disability. This Interim Decision addresses the applicant's requests to defer the hearing of this matter, which is scheduled for January 28 and 29, 2016, and to amend the Application.

Request to Amend

2The applicant filed a Request for an Order During Proceedings on December 14, 2015 seeking to amend the Application to include alleged incidents of discrimination that occurred on January 21 and 22, 2013 and to amend the remedies he seeks. The applicant submitted that he had prepared his Application in haste to meet the limitation period without the benefit of legal counsel. The applicant submitted that he wanted the Tribunal to have a complete understanding of his experience of harassment and discrimination.

3The applicant also included allegations in the request to amend already included in the Application regarding an interaction he had with campus security on June 4, 2013, a meeting regarding this incident on June 6, 2013 and his efforts to address his concerns about the incident. In my view, it is unnecessary to "add" these allegations to the Application.

4The applicant also requested damages of $45,000.00 for the incident alleged to have occurred on January 21, 2013, $45,000.00 for an incident (identified in the Application) alleged to have occurred on June 4, 2013, damages of $25,000.00 for the organizational respondent's alleged failure to address his concerns and $5,000.00 for "loss of quiet enjoyment while accessing campus services". The applicant also seeks a variety of non-monetary remedies.

5The respondents did not respond to the request is the time period specified in the Tribunal's Rules of Procedure (the "Rules"). In a Case Assessment Direction dated, January 19, 2016, the Tribunal directed the respondents to respond to the requests by January 22, 2016. The organizational respondent complied with the direction on January 22, 2016. The individual respondents complied, belatedly, on January 25, 2016. The organizational respondent submitted that the factual allegations the applicant seeks to add to the Application are untimely, as they allegedly occurred more than one year prior to the date on which the Application was filed. The individual respondents submitted that he applicant seeks to add new factual allegations that are separate and distinct from those set out in the Application and are the basis for a new remedial claim. The individual respondent also submitted that the incidents the applicant seeks to add allegedly occurred outside the limitation period. The individual respondents submitted that the applicant has not provided an adequate reason for seeking to amend the Application on the eve of the hearing, given that the incidents he seeks to add were within his knowledge at the time he filed the Application. The individual respondents submitted that they would be prejudiced if the amendments are allowed, since the respondents have not responded to these allegations and have not prepared to address them at the hearing.

6On January 25, 2016, the applicant purported to file a reply to the respondents' submission. The Tribunal's rules do not provide for a reply to a Request for an Order and I have had no regard to the applicant's submissions.

Analysis and Decision

7In determining requests to amend pleadings 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 Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066, 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.

8The proposed factual allegations the applicant seeks to add to the Application appear, based on the material before me, to be known to the parties and form part of the evidential background to the Application. The applicant did not seek to add these allegations as a basis for his claim against the respondents until very late in the process and his submissions provide quite limited information about the facts of the incidents in January 2013. The applicant's reasons for seeking to add these facts are not persuasive. In my view, adding these allegations to the Application very shortly before the hearing of the Application would not be fair to the respondents, who have had no opportunity to respond to or prepare for these allegations. The request to add the incidents allegedly occurring on January 21 and 22, 2013 is denied.

9The Tribunal will generally allow requests to amend an applicant's remedial relief, since the mere fact that a remedy has been requested is no indication that the Tribunal will grant it. However, there is no basis for a remedy with respect to the incident allegedly occurring on January 2013, as I have declined to add these allegations to the Application. The Tribunal also has no jurisdiction to award damages for "quiet enjoyment". The request to add these remedies to the Application is denied. The balance of the request to add to the applicant's request for remedial relief is granted.

Request to Defer

10On December 15, 2016, the applicant filed a Request for an Order during Proceedings seeking to defer the Application pending the conclusion of a civil action before the Ontario Superior Court of Justice commenced by the applicant against the respondents. The applicant submitted that, although the civil action addresses different legal issues, it is based on the same facts. The applicant submitted that the Tribunal should defer the Application until the Court makes findings of fact in the civil action, in order to promote the values of efficiency and convenience in a future proceeding before the Tribunal.

11As noted, the organizational respondent and individual respondents filed Responses to a Request for an Order on January 22 and 25, 2016, respectively, opposing the request to defer. The organizational respondent submitted that the request to defer is untimely, as the applicant filed his civil claim on June 2, 2015 and he had ample time to request deferral. The organizational respondent submitted that the request to defer appears to be a tactic to avoid proceeding with the hearing in light of his recent request to adjourn, which was denied. The organizational respondent submitted that the Application is ready to be heard, but the civil action is at the pleadings stage. The organizational respondent submitted that the Application and civil action deal with different legal theories and issues; therefore, the risk of inconsistent findings of fact or law or for double recovery is remote. The individual respondents agreed with the organizational respondents submissions and also noted that the civil action has not proceeded beyond the pleadings stage.

Analysis and Decision

12The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Deferral is not automatically invoked simply because the same parties are involved in other legal proceedings, see Haskins v. TNS Canadian Facts, 2008 HRTO 287. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them: see Calabria v. DTZ Barnicke, 2008 HRTO 411, and Kaj v. Orsini Bros. Inns, 2009 HRTO 170.

13In this case, the Application before this Tribunal is at a very advanced stage, as it will be heard this week. The civil action is at a very early stage of its proceeding. In my view, it would neither be fair overall to the parties nor a just, fair or expeditious result, to defer this Application pending the outcome of the civil action. The request to defer is denied.

Order

14The Tribunal orders as follows:

1. The request to add the incidents of January 21 and 22, 2013 is denied;
2. The request for a remedy in respect of the incident of January 21, 2013 is denied;
3. The request for damages for "quiet enjoyment" is denied;
4. The balance of the request to add to the applicant's request for remedial relief is granted; and,
5. The request to defer the Application is denied.

Mediation/Adjudication

15I take this opportunity to advise the parties that at the outset of the hearing, I will offer them the option to participate in Mediation/Adjudication, pursuant to Rule 15A of the Tribunal's Rules. I would be grateful if the parties would be prepared to discuss whether they are willing to participate in Mediation/Adjudication.