HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edgar Briggs
Applicant
-and-
Lost & Found
Respondent
AND BETWEEN:
Brandon Briggs
Applicant
-and-
Lost & Found
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Briggs v. Lost & Found
WRITTEN SUBMISSIONS
Edgar Briggs and Brandon Briggs, Applicants
Clara Matheson, Counsel
Introduction
1The first Application alleges discrimination with respect to goods and services because of disability and the second Application alleges discrimination with respect to goods and services because of an association with a person identified by an enumerated ground, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision is in response to a Request for an Order During Proceedings filed by the applicants on April 27, 2016 to amend the Applications (“request to amend”) as follows:
a. amend section 5 to include the grounds of race, colour, ancestry, and sex; and
b. amend section 10 to include a request that the respondent develop and implement a human rights policy and complaints procedure, as well a training of all staff on the policy.
3The respondent did not file a Response to the request to amend.
4The applicants allege that the respondent discriminated against them when the respondent’s bouncer denied them entry into the nightclub on March 21, 2015. The applicant Edgar Briggs alleges that the bouncer refused him entry because he uses canes and was wearing running shoes. The applicant Brandon Briggs alleges that he was refused entry because of his association with his brother, Edgar Briggs. The Applications only refer to disability and association with a person identified by an enumerated ground, respectively, as the grounds for discrimination. The applicants identify as African Canadian men.
5On December 22, 2015, the applicants retained counsel.
6Edgar Briggs alleges that race, colour, ancestry and sex, in combination with disability, were factors in the bouncer’s decision to deny him entry into the nightclub. Edgar Briggs alleges that the bouncer’s actions were informed by negative stereotypes and assumptions about him because he is a Black man who has a visible disability.
7Brandon Briggs alleges that race, colour, ancestry and sex were factors in the respondent’s decision to deny him entry into the nightclub, in combination to his association with his brother, Edgar Briggs.
8The applicants submit that it is important for race, colour, ancestry and sex to be included as grounds in order for the Tribunal to be able to assess the merits of their case form an intersectional perspective and to recognize the complexity of how they experienced discrimination. They maintain that evidence in support of their allegations will be presented through the disclosure process and through cross-examination.
9The applicants self-drafted their Applications and only received advice with respect to the grounds upon retaining counsel. They submit that there is no prejudice to the respondent in granting the request. The allegation of racial discrimination can be inferred from the narrative of section 8 of both Applications as the applicants refer to the bouncer as a Caucasian male and the respondent refers to race in the Response, providing that it has no policy to restrict entry based on race or disability.
10The applicants maintain that on March 24, 2016, by email, counsel for the applicants put the respondent on notice of their intention to add race and sex as grounds of discrimination.
11The applicants also request to amend the Application to include a public interest remedy. The applicants self-drafted their Applications and did not understand all of the public interest remedies that could be awarded by the Tribunal.
ANALYSIS AND DECISION
12Rule 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”.
13In deciding 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 respondents. 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.
14I am satisfied that the applicants should be permitted to amend the Applications as described in the request to amend. The Tribunal has not scheduled the hearing date with regard to the merits of the Applications. In my view there is adequate time for the respondent to address the new allegations raised by the applicants. In addition, the new allegations appear to be linked to the allegations outlined in the Applications. Finally, the respondent has not responded to the request to amend and has not argued that it will be prejudiced by the amendments. I find that there is no apparent prejudice to the respondent in granting the Request.
order
15For the reasons set out above, the applicants’ request to amend the Applications is granted as follows:
a. section 5 is amended to include the grounds of race, colour, ancestry, and sex; and
b. section 10 is amended to include a request that the respondent develop and implement a human rights policy and complaints procedure, as well a training of all staff on the policy.
16The respondent may file an amended Response to respond to the amendment within 28 days from the date of this Interim Decision. If the applicants wish to file a Reply to any amendment made to the Response, they must do so within 14 days of receiving an Amended Response from the respondent.
Dated at Toronto, this 22nd day of June, 2016.
“signed by”
Josée Bouchard
Vice-chair