HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asad Khan

Applicant

-and-

Peel Condominium Corporation No. 492

Respondent

A N D B E T W E E N:

Asad Khan

Applicant

-and-

Peel Condominium Corporation No. 492

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: April 4, 2016

Citation: 2016 HRTO 419

Indexed as: Khan v. Peel Condominium Corporation No. 492

WRITTEN SUBMISSIONS

Asad Khan, Applicant

Joy Lewis, Paralegal

Peel Condominium Corporation No. 492, Respondents

Patrick James, Counsel

Introduction

1This Interim Decision addresses the applicant’s two Form 10 Requests for an Order During Proceedings that request the following:

a. that Application 2014-19196-I (“the 2014 Application) be consolidated with Application 2015-22537-I (“the 2015 Application”);

b. that the applicant be permitted to amend the 2015 Application to add the ground of reprisal and to increase the monetary award of damages requested;

c. an order that the respondent in the 2014 Application to produce its documents;

d. an order compelling the respondent to grant the applicant dedicated usage at the respondent and compelling the Respondent to allow the applicant to relocate his ATM to another reasonable location within PCC 492 without forcing him to go out of business;

e. an order that the respondent cease harassing the applicant’s witness;

f. an order that the respondent translate its correspondence from Chinese to English; and

g. that a mediation take place instead of a hearing.

2The hearing in this matter is set for May 20, 2016.

Request to Consolidate

3With respect to the applicant’s request that the 2014 and 2015 Applications be consolidated, no order is required as this was done on the consent of the parties by the Tribunal on March 2, 2016.

Request to Amend

4The applicant seeks to amend his 2015 Application to increase the amount claimed for injury to dignity, feelings and self-respect, and to include new allegations of reprisal.

5Specifically with respect to the reprisal allegations, the applicant claims that the following constitute reprisal:

a. Dec 17, 2015 Board of Directors letter "To Safeguard Our Mutual Interest Relies on All of Us at This Critical Moment Each And Every Unit Owner Has to Fulfill His Responsibility and Do His Part."

b. December 20, 2015 Board of Directors letter entitled "AT THE TIME YOU GAVE YOUR SIGNATURE DID YOU KNOW THE TRUTH OF THE PETITION?"

c. January 8, 2015 – Board of Directors’ decision to amend the Declaration, Common Interest are Common Affairs [sic].

d. January 23, 2016 Board of Directors’ letter entitled "NOTICE OF EXEMPTION" to every unit owner at PCC492 [the respondent] was circulated with the intent of ridiculing the Applicant and insuring that the Applicant would not receive support from other unit owners.

6The respondent takes no position with respect to the applicant’s request to be permitted to amend his Application to increase the amount claimed for injury to dignity, feelings and self-respect, and this amendment is permitted 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.” Since the respondent takes no position, there is no prejudice to it.

7With respect to the request to add four additional claims that the applicant alleges constitute reprisal, the applicant provides no detail with respect to this request. The respondent objects to these requested amendments. It submits the applicant has made only bald allegations that these constitute reprisal. In addition, adding these allegations will delay the proceedings because it will require the parties to file amended pleadings.

8The amendments to add what the applicant alleges are claims of reprisal are not permitted, taking into consideration the nature of the requested amendments. I agree with the respondent that the applicant has provided no reasons why these letters constitute reprisal, nor explained his request in any way.

9With respect to the applicant’s request in his second Form 10 Request for an Order During Proceedings, namely an order compelling the respondent to grant the applicant dedicated usage at the respondent and compelling the respondent to allow the applicant to relocate his ATM to another reasonable location within PCC 492 without forcing him to go out of business, it appears this a request for permission to amend his Application to include an additional remedy, although the request is not clear. The respondent viewed this as the applicant’s request for an interim remedy.

10I have addressed this as a request to add an additional remedy. This amendment is permitted based on the factors set out, above. The Tribunal regularly has granted requests to amend remedies 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.

11The amendments are permitted 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.

Document Production

12The applicant requests that the respondent provide its arguably relevant documents. The Tribunal has not received a Form 23 Statement of Delivery evidencing delivery of these to the applicant by the respondent, despite the respondent’s indication that this has been done. The respondent shall deliver its arguably relevant documents to the applicant and file a Form 23 Statement of Delivery with the Tribunal by no later than April 8, 2016.

Cease Harassment of Witness

13The applicant has not provided any information for me to consider with respect to this request, and this request is denied.

Translation

14The applicant requests that the respondent be compelled to translate its correspondence from Chinese to English.

15Rule A6.1 of the Tribunal’s Rules of Procedure provides that individuals may provide written materials to the Tribunal in either English or French.

16In this case, it appears the applicant has the correspondence in English. There is no requirement on the respondent to provide him with a translation of the Chinese documents. However, the Chinese version of the letters would be arguably relevant and should be disclosed to the applicant as part of the respondent’s arguably relevant documents.

17At this stage, the Tribunal makes no order with respect to the translation of the Chinese documents.

Mediation

18The respondent has indicated an unwillingness to participate in mediation. As participation is voluntary, the matter will proceed to a hearing. The parties likely will be offered a chance at mediation/adjudication at the outset of the hearing.

order

19The Tribunal orders:

a. the applicant’s request to amend his Application to increase the amount claimed for damages for injury to dignity, feelings and self-respect is granted;

b. the applicant’s request to add a remedy to his Application, namely that compelling the respondent to grant the applicant dedicated usage at the respondent and compelling the Respondent to allow the applicant to relocate his ATM to another reasonable location within PCC 492 without forcing him to go out of business, is granted; and

c. the respondent shall deliver its arguably relevant documents to the applicant and file a Form 23 Statement of Delivery with the Tribunal by no later than April 11, 2016.

20The Tribunal at this stage of the proceedings makes no order with respect to the translation of the Chinese documents.

21The balance of the applicant’s requests are denied.

22I am not seized.