Fleming v. Metropolitan Toronto Condominium Corporation No. 986, 2017 HRTO 1035

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adeline Theresa Fleming

Applicant

-and-

Metropolitan Toronto Condominium Corporation No. 986 and Judy Larocque and Judy Marshall

Respondents

AND BETWEEN:

Adeline Theresa Fleming

Applicant

-and-

Metropolitan Toronto Condominium Corporation No. 986

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: August 11, 2017

Citation: 2017 HRTO 1035

Indexed as: Fleming v. Metropolitan Toronto Condominium Corporation No. 986

WRITTEN SUBMISSIONS

Adeline Theresa Fleming, Applicant

Shibil Siddiqui, Counsel

Metropolitan Toronto Condominium Corporation No. 986 and Ginette Larocque and Judy Marshall, Respondents

An Nguyen, Counsel

1This Interim Decision addresses the applicant’s request to amend her Application.

2The applicant filed two Applications, one alleging discrimination because of race and one alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). With respect to her allegations of discrimination because of race, she described what she has characterized as harassment, especially in respect of her service on the Board of the Respondent Condominium Corporation. With respect to her allegations of discrimination because of disability, she described her interactions with the respondent regarding what she has stated is the smell of others’ cigarette smoke in her housing unit.

3On May 2, 2016, the applicant sought to amend the Application to add an allegation of reprisal to Application 2016-23343-I. In particular, she alleged that a letter she received from the Board of Directors on April 11, 2016, was sent in reprisal for the fact that she filed her Application at the Tribunal on February 8, 2016. The letter cited a By-Law of the respondent Condominium Corporation and advised her that she was disqualified as a member of the Board of Directors of the Condominium Corporation as she is “party to litigation, mediation, and/or arbitration with an interest in opposition to that of the Corporation.

4The respondents filed a Response to the request. They objected to the amendment and provided their response to the allegation of reprisal, indicating that her disqualification was required and automatic pursuant to the By-Law cited in the April 11, 2016 letter and also required by the Condominium Act, 1998.

5On May 9, 2017, the respondents provided their arguably relevant documents to the applicant, including a copy of the above-noted By-Law and April 11, 2016 letter.

6On May 17, 2017, the applicant filed a Request for Order During Proceedings (RFOP) in which she repeated her request to include the above-noted allegation of reprisal and sought to request additional remedies.

7In respect of Application 2016-23343-I, she sought to add a request for monetary compensation in the amount of $15,000, an order for the Respondent Condominium Corporation to repeal or amend the above-noted By-Law, an order for the applicant to be reinstated to the Board of Directors of the Condominium Corporation as soon as there is a vacancy on the Board, and an order for mandatory human rights training for its current Board of Directors and for any Board members subsequently elected. The RFOP noted that the respondent had already provided a response to the reprisal allegation and submitted that there is no prejudice to the respondents in allowing the amendments. It also submitted that at the time the applicant initially filed her Application, she was not represented.

8In respect of Application 2016-23344-I, the applicant seeks to add the following remedies: monetary compensation in the amount of $40,000; an order requiring no smoking in the Superintendent’s Unit; an order to install a “cigarette smoke detector” in the Superintendent’s Unit to monitor compliance; an order that the respondent provide to the applicant and pay for an air purifier “specifically designed to scrub cigarette smoke and related particles from the environment”; an order that the respondent create and adopt a human rights policy consistent with the Code and; an order an order for mandatory human rights training for its current Board of Directors and for any Board members subsequently elected.

9The respondents have not responded to the May 17, 2017 RFOP and the time for doing so has now lapsed.

10On June 28, 2107, the respondents filed their list of witnesses and summaries of what their witnesses will say, along with the documents upon which they intend to rely at the hearing. They indicated that personal respondent Judy Marshall, president and secretary of the Board of the respondent Condominium Corporation, would provide testimony which would include the evidence “set out in the Responses dated April 11 and May 19, 2016”. The respondents’ Response was dated April 11, 2016, but they do not appear to have filed a Response dated May 19, 2016. It appears that this is a reference to the above-noted May 9, 2016 response to the applicant’s request to amend her Application. The documents which the respondents have filed as the documents upon which they intend to rely include both the above-noted By-Law and the above-noted April 11, 2016 letter to the applicant.

decision

11In 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, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

12Having considered the factors set out above, I grant the applicant’s request to amend the Application.

13In this matter, it appears that though the respondents objected to the amendment of the Application to include an allegation of reprisal, they have provided their response to that allegation, have provided the documentation regarding the allegation and have indicated that at least one of their witnesses will provide testimony in respect of that allegation. The initial request to add this allegation was made May 2, 2016 and it does not appear that the timing of this decision granting the amendment will have an impact on the matter. The respondents have not argued that there is any prejudice to them in including the reprisal allegation, but rather indicate that they have what they believe to be a full answer to the allegation.

14The fact that a respondent believes it has a full answer to an allegation is not in and of itself grounds to refuse a request to include an additional allegation. The application may be amended so as to add the allegation and the respondents will be free to make the arguments they believe to be a full answer to it. I make no comment regarding the strength of the position of either party in respect of the April 11, 2016 letter to the applicant and the allegation of reprisal.

15While an allegation of reprisal is a different ground from the ones set out in the Application itself, it does not appear that adding the allegation will appreciably lengthen the hearing, nor is it likely to prejudice the respondents, who have provided their response, documentation and summary of evidence regarding the allegation.

16The respondents have not objected to the applicant’s request to amend the remedy she seeks. The applicant’s request to amend the remedy sought is granted. There is no evidence that the respondents will be prejudiced by the amendment. The Tribunal has regularly 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. I also note that it is open to the Tribunal, on its own initiative, to seek the submissions of the parties on the appropriate remedy at any time, in the event that a violation of the Code is found.

17This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondents may wish to take regarding this issue.

order

18For the reasons set out above, the Tribunal orders as follows:

a. the applicant’s request to amend the Application is granted;

b. the Application is amended to include an allegation that the respondents’ letter to her of April 11, 2016 was a reprisal contrary to the Code;

c. the Response is amended so as to include the May 9, 2016 response provided by the respondents to the allegation of reprisal;

d. the Application is amended to include a request for the remedies sought by the applicant in her May 9, 2107 RFOP.

19I am not seized.