HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
James Gonder
Applicant
-and-
Peterborough Regional Health Centre
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Gonder v. Peterborough Regional Health Centre
WRITTEN SUBMISSIONS
James Gonder, Applicant
Self-represented
Peterborough Regional Health Centre, Respondent
Bethan Dinning and Daniel Girlando, Counsel
Introduction
1The purpose of this Interim Decision is to deal with the applicant’s request to amend his Application, and the respondent’s request for a summary hearing.
BACKGROUND
2On February 21, 2017, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to services because of his creed.
3On June 2, 2017, the respondent filed a Response, which denied the allegation of discrimination.
4On June 21, 2017, the respondent filed a Request for Summary Hearing.
5On June 22, 2017, the applicant filed a Reply to the Response.
6On August 11, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”) to amend his Application to add the Code ground of “disability”.
7On August 11, 2017, the applicant also filed a Response opposing the respondent’s Request for Summary Hearing.
8On August 27, 2017, the respondent filed a Response opposing the applicant’s RFOP to amend his Application to add the Code ground of “disability”.
REQUEST TO AMEND
9In determining a request to amend an Application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
10The applicant’s request is granted. The request is related to an allegation in para. 12 of the narrative of the Application, the respondent has not identified any significant prejudice that would result to it if the request is granted, and I do not believe that granting the amendment will significantly complicate or lengthen the hearing.
11The respondent is not required to file a written response to the allegation of discrimination because of disability at this time, but shall do so if the Application is not dismissed following a summary hearing.
REQUEST FOR SUMMARY HEARING
12The respondent’s request for a summary hearing is granted. The Tribunal directs that a summary hearing be held to address to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
13Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
14Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
15The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success.
16If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.
17A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases which they intend to rely upon no later than 14 days prior to the teleconference.
18The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at http://www.sjto.gov.on.ca/hrto, and the Tribunal’s case law at http://www.canlii.org/en/on/onhrt/index.html.
ORDER
19The Tribunal makes the following orders:
The applicant’s request to amend his Application to add the Code ground of “disability” is granted.
The respondent’s request for a summary hearing is granted. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases which they intend to rely upon no later than 14 days prior to the teleconference.
20I am not seized of this matter.
Dated at Toronto, this 5th day of October, 2017.
“Signed by”
Ken Bhattacharjee
Vice-chair