Fenkam v. Le Collège La Cité, 2016 HRTO 939

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christian Fenkam

Applicant

-and-

Le Collège La Cité and Danielle Paris

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 18, 2016

Citation: 2016 HRTO 939

Indexed as: Fenkam v. Le Collège La Cité

WRITTEN SUBMISSIONS

Christian Fenkam, Applicant

Self-represented

Le Collège La Cité and Danielle Paris, Respondents

Mélissa Lacroix, Counsel

1This Interim Decision addresses the respondents’ request that the Tribunal strike the Reply filed by the applicant.

2The Tribunal is currently in the process of scheduling this Application for a hearing. In his Application, the applicant alleged that the respondents discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In his Application, the applicant alleged that the respondent discriminated against him during elections for a class representative. Among other things, he alleged that the personal respondent made certain discriminatory comments during these elections. He also alleged that the respondents made false allegations against him and suspended him from his program for discriminatory reasons.

3The applicant claimed that the respondents discriminated against him in the social area of employment. However, in his Reply, he referred to the social ground of services.

4The respondents filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal strike the applicant’s Reply for three reasons: (1) the applicant invoked a new social area, that of service provision; (2) the Reply only reiterates and reformulates facts already alleged in the Application; and (3) the few new allegations in the Reply are not relevant.

5The applicant opposed the respondents’ RFOP.

findings

6I find that the respondent’s RFOP must be denied for the reasons that follow.

7I agree with the respondents that the applicant originally alleged discrimination in the social area of employment. However, a review of his Application makes clear that the appropriate social area is likely the social area of services under s. 1 of the Code. When an applicant wishes to amend an Application to add a social area, the appropriate way to proceed is to file an RFOP requesting that the Application be amended. If the applicant wished to amend his Application to allege discrimination in the provision of services, that is what he should have done rather than adding the social area in his Reply.

8In my view, there is nothing to be gained by requiring the applicant to file an RFOP to add the social area of services since both parties have addressed the issue in the materials they have filed. In my view, it is appropriate to amend the Application to add the social area of services since this social area more accurately describes the allegations set out in the narrative contained in the Application. The Tribunal frequently grants requests to add social areas to Applications if the amendment does not change the nature of his allegations but instead better reflects the social area engaged by these allegations. See for example Cunneen v. Tri County Hockey, 2015 HRTO 1477 at para. 12. That is the case here.

9In my view, any prejudice to the respondents can be cured by permitting them to amend their Response if there is anything they wish to add due to the amendment of the Application to add the social area of services.

10I am not persuaded that the other two reasons provided by the respondents are appropriate reasons to strike the applicant’s Reply. The fact that there is some repetition in the Reply is not a reason to strike a Reply. In terms of any irrelevant alleged facts in the Reply, the respondents will have the opportunity to object to any irrelevant evidence at the hearing.

ORDER

11For the reasons set out above, the Tribunal orders as follows:

a. the respondents’ request that the Tribunal strike the applicant’s Reply is denied;

b. the Application is amended to add the social area of services;

c. The respondents are permitted to amend their Response if they wish to address the addition of the social area of services. Any amended Response must be filed within 21 days of the date of this Interim Decision.

12I am not seized of this matter.