HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark McCance
Applicant
-and-
The Regional Municipality of York Police Services Board, Mark Brown, Rick McCabe, Wallace Gossen, Kate Adams, Robertson Rouse and Darren Leitch
Respondents
-and-
York Regional Police Association
Intervenor
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: McCance v. The Regional Municipality of York Police Services Board
WRITTEN SUBMISSIONS
Mark McCance, Applicant
Ron Franklin, Counsel
The Regional Municipality of York Police Services Board, Mark Brown, Rick McCabe, Wallace Gossen, Kate Adams, Robertson Rouse and Darren Leitch, Respondents
Stephen Maio, Counsel
York Regional Police Association, Intervenor
Bruce Price, Counsel
Introduction
1This Application is scheduled for a hearing on January 19 and 20, 2017.
2A number of preliminary issues have been brought by the parties that have not been determined by the Tribunal. On August 15, 2016, the applicant brought a request to amend the Application by correcting a typographical error, adding allegations of reprisal that took place after filing the Application, and amending the remedial section of the Application. On the same day, the respondents brought a request to remove the individual respondents.
3On November 9, 2016, the applicant brought a request for production of documents. On November 23, 2016, the respondent brought a request to dismiss portions of the Application that relate to incidents that occurred prior to October 26, 2014 as untimely. The respondents submit that the only timely allegations are from October 26, 2014 to October 26, 2015.
4Due to an administrative error, the preliminary requests were not brought to the attention of a Vice-chair until the file was recently assigned to me.
5On December 16, 2016, I had a case management conference call with the parties to discuss the process for addressing the preliminary requests and the possibility of converting the January hearing dates to mediation/adjudication.
6All parties agree to use the January hearing dates for mediation/adjudication. The applicant believes the preliminary requests should be dealt with in advance of the January dates. The respondents do not believe it is necessary for me to decide the preliminary issues before proceeding to mediation/adjudication, but leaves it to me to determine what is appropriate, with one exception: the respondents submit that it is premature for me to address the production issue because it is impacted by the other requests that affect the scope of the Application. The union defers to the Tribunal’s judgment on this issue.
decision
7Given that the parties have agreed to proceed to mediation/adjudication, it is important that I determine the scope of the Application. As such, the applicant’s request to amend the Application must be decided.
8In 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, Dube v. Canadian Career College, 2008 HRTO 336 and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
9Having considered these factors, I grant the applicant’s request to amend the Application. The amendments relate to instances of alleged reprisal occurring after the Application was filed and as such, they could not have been included in the Application. Given the nature of the proposed amendments and the ongoing relationship between the parties, it is appropriate to allow the applicant to add these allegations. It is not uncommon for the Tribunal to permit applicants to amend their remedies prior to the hearing. Finally, the applicant should be permitted to amend the typographical error in the Application.
10In making this ruling I am cognizant of the fact that the respondents have raised timeliness issues with respect to some of the allegations in the Application. However, this is not a situation where an application in its entirety could be dismissed because of timeliness concerns. The respondents have conceded that the allegations between October 26, 2014 and October 26, 2015 are timely. As such, at least part of the Application will proceed regardless of my decision on timeliness.
11I would also like to reiterate that the applicant’s amendment request was brought well in advance of the scheduled hearing. It should have been addressed in August or September 2016. However, because of an administrative error, this did not occur. I appreciate that this decision is made late in the proceeding. However, because the hearing on the merits is not occurring in January 2017, any prejudice to the respondents is mitigated by the fact that should the matter not resolve, there will be some delay before the rescheduled hearing takes place.
12In my view, the remaining preliminary issues do not have to be determined prior to the mediation/adjudication. I say this for a number of reasons. One, the remaining issues are all inter-related. For example, the respondents’ submissions on timeliness will be impacted by my decision to allow the applicant to amend the Application. Similarly, the applicant’s production request impacts the removal of the individual respondents. Two, during the case management conference call, I advised the parties that I would not require the respondents to produce further documents given the lack of time to do so. The hearing is less than one month away and respondents’ counsel is on holidays from December 22, 2016 until January 10, 2017. In these circumstances, it is not feasible to order comprehensive disclosure at this time. Because I am not ordering actual disclosure of documents, there is really no need to decide the production issue at this time. Three, the respondents’ production obligations have been impacted by my decision on the amendment request. Further production, if the matter proceeds to a hearing, will be required as a result of this decision.
13In summary, my decision on the applicant’s amendment request has impacted the issues of production and timeliness. It would be premature to deal with these issues until the parties have the opportunity to consider the impact of my amendment decision and make further submissions. In the event the matter does not resolve, the remaining issues can be dealt with at that time.
order
14The applicant’s request to amend the Application is granted.
15The Application will proceed to mediation/adjudication on January 19 and 20, 2017.
16The parties should consult with each other as to whether the individual respondents should attend the mediation/adjudication.
Dated at Toronto, this 22nd day of December, 2016.
“Signed By”
Jennifer Scott
Vice-chair