HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Men-Chong Luk
Applicant
-and-
York Condominium Corporation No. 382 and Brookfield Condominium Services Ltd.
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Luk v York Condominium Corporation No. 382
1On November 18, 2015, the applicant filed an Application alleging a Contravention of Settlement (“the Application”). In her Application the applicant alleges that the respondent York Condominium Corporation No. 382 (“York Condominium”) contravened Paragraph 2 of the October 9, 2015 Minutes of Settlement (“MOS”) between the parties. This Interim Decision is intended to respond to requests for orders made by the parties and assist them in preparing for the Contravention of Settlement Hearing (“the hearing”) scheduled for May 6, 2016.
2Paragraph 2 of the MOS provides:
The Respondent York Condominium Corporation No. 382 agrees to institute a policy pursuant to which it will investigate any complaints that owners or residents have violated any of the condominium’s rules, and if substantiated, take what it deems to be appropriate action in accordance with the Human Rights Code, the Condominium Act and any other applicable statutes or law.
3On December 15, 2015, York Condominium filed its Response to an Application of Contravention of Settlement (“the Response”) denying the allegations. The applicant filed her Reply on December 18, 2015.
4On April 13, 2016, the respondents filed a Request for an Order During Proceedings to amend the Response, maintaining as follows:
a. York Condominium has, since filing its Response, finalized and implemented the policy referred to in Paragraph 2 of the MOS and the Application should be dismissed because it is moot (“request to dismiss Application”);
b. The applicant contravened the confidentiality Paragraphs of the MOS or the Full and Final Release, signed by the parties on October 9, 2015.
5On April 17, 2016, the applicant filed a Response to a Request for an Order maintaining that:
a. The respondents have not complied with Paragraph 2 of the MOS;
b. She has not contravened the confidentiality Paragraphs of the MOS or the Full and Final Release;
c. The respondents have contravened Paragraph 9 of the MOS, which provides:
The parties agree to maintain the strict confidentiality of the terms of these Minutes of Settlement and will not disclose them to anyone except in accordance with the Full and Final Release attached hereto as “Appendix A”. In the event that questions are asked about what occurred with the Application, the parties will respond by stating only that the Application was resolved and that because of a confidentiality clause no further information will be provided.
6The applicant also notes that she has filed a new Application against the respondents alleging continued reprisals.
Respondents’ Request to Dismiss the Application
7The respondents request the dismissal of the Application because, since filing the Response, York Condominium has finalized and implemented the policy referred to in Paragraph 2 of the MOS and has complied with the MOS.
8The applicant objects to the request arguing in part that, despite the seriousness and urgency of the matter, the respondents took approximately six months to adopt the policy.
9The request to dismiss will be addressed at the hearing after hearing the submissions of the parties on this issue.
Requests to Amend Application and Response
10Subsection 45.9 of the Code provides that a party who believes that another party has contravened a settlement may make an application to the Tribunal, within six months of the contravention.
11The applicant filed her Application on November 18, 2015 alleging only that York Condominium violated Paragraph 2 of the MOS.
12On April 13, 2016 and April 17, 2016, the respondents and applicant, respectively, requested an amendment of their Response and Application, alleging that the other party had breached the confidentiality Paragraphs of the MOS and/or the Full and Final Release.
13Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended.
14In deciding requests to amend 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 parties. See, for example, 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.
15In considering these factors, I dismiss the requests to amend made by each party. The proposed amendments are entirely new and different than the allegation in the Application, that York Condominium has contravened Paragraph 2 of the MOS. The Requests, both filed on the eve of the hearing, would require the calling of evidence which would entirely change the character of the hearing and might lead to delay in the resolution of this dispute.
16The respondents explain that it is after the filing of the Response that an alleged email, dated February 28, 2016, was sent by the applicant’s spouse to board members contravening the confidentiality Paragraphs of the MOS or Full and Final Release. However, although filed within the “six months after the contravention” period provided by the Code, the respondents have not explained why they filed the request to amend slightly over two weeks before the hearing and more than one month after the alleged contravention. I find that the applicant would be prejudiced by the new proposed amendment to the Response at this late date.
17The applicant requests to amend her Application and alleges that, beginning early in November 2015, a board member told many owners of York Condominium that the applicant made a lot of money from the respondents with her applications before the Tribunal. Although filed within the “six months after the contravention” period provided by the Code, the applicant does not explain why she filed her request to amend slightly over two weeks before the hearing and a number of months after the first alleged contravention. I find that the respondents would be prejudiced by the proposed amendment to the Application at this late date.
18The requests to amend the Application and Response are dismissed. I will not accept submissions or evidence by the parties related to alleged violations of confidentiality Paragraphs in the MOS or Full and Final Release.
Incidents Occurring at York Condominium
19The applicant alleges in her Application one specific contravention: the contravention of Paragraph 2 of the MOS. However, in their various submissions, the parties rely on alleged incidents, more specifically altercations between residents and board members at York Condominium unrelated to the adoption of a policy, that occurred in March 2015 and between September 2015 and October 9, 2015. The alleged incidents and whether York Condominium has appropriately investigated them are not relevant to the alleged violation by York Condominium of Paragraph 2 of the MOS.
20The issue before me in this Application is quite specific. I must determine whether York Condominium has contravened Paragraph 2 of the MOS, reproduced in its entirety above, by failing to “institute a policy" by which it will investigate any complaints by owners or residents of alleged violations of any of the condominium’s rules, and if substantiated, take appropriate action. I will only hear submissions that are arguably relevant to this allegation. The issues I will consider are as follows:
a. Has York Condominium contravened the MOS by failing to adopt a policy pursuant to Paragraph 2 of the MOS?
b. Has York Condominium contravened the MOS by failing to meet any timeline for the adoption of the policy pursuant to the MOS?
c. If York Condominium contravened Paragraph 2 of the MOS, what remedies should be granted?
Applicant’s New Application
21In her April 17, 2016 Response to a Request for an Order, the applicant provides background information for a new Application against the respondents, filed with the Tribunal, for continued reprisals. This new Application is not before me and I will not hear submissions or evidence related to the new Application.
The Hearing
22This is a half day hearing scheduled by conference call.
23On April 17, 2016, the applicant indicated that, other than herself, she will call five witnesses. The applicant has not provided witness statements.
24On April 19, 2016 the respondents indicated that they would call three witnesses. The respondents have not provided witness statements.
25Pursuant to Rule 1.7 of the Tribunal’s Rules of Procedure (“Rules”), the Tribunal may limit the evidence or submissions on any issue.
26The Tribunal has indicated that it may decline to hear evidence from a proposed witness that is not relevant to the issues it is required to resolve or is repetitive of evidence previously admitted. See Arnott v. Vari-Form Corporation, 2012 HRTO 446.
27This Tribunal promotes fair, just and expeditious resolution of disputes. Requesting witnesses to appear before the Tribunal when their evidence is not required and relevant to the central issue of the case is not consistent with this principle.
28As this hearing will address only the alleged contravention of Paragraph 2 of the MOS and remedies if a contravention is found, I am of the view that submissions from the parties are sufficient to decide this matter. If either party objects to this procedure they may do so in writing by delivering and filing a witness list and a detailed summary of each witnesses’ anticipated evidence.
Order
29The Tribunal orders as follows:
a. The respondents’ request to dismiss the Application will be addressed at the hearing;
b. The parties will only make submissions and provide evidence that are arguably relevant to the allegation of contravention of Paragraph 2 of MOS and remedies if a contravention is found; and
c. Within 7 days of the date of this Interim Decision, any party objecting to the procedure outlined above will deliver and file a witness list and a detailed summary of each witnesses’ anticipated evidence.
Dated at Toronto, this 21st day of April, 2016.
“Signed By”
Josée Bouchard
Vice-chair