Saturday, January 12, 2013

Amending Pleadings at the Human Rights Tribunal of Ontario: Cadarette v. Peel Regional Police Services Board

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on January 12, 2012

The December 31, 2012 decision in Cadarette v. Peel Regional Police Services Board, 2012 HRTO 2411 adds significantly to the jurisprudence of amending the pleadings in Human Rights Tribunal applications and highlight the problematic issue of self - represented litigants who are not familiar with the rules on pleadings at the administrative tribunal level.

This was an application by a self-represented police constable alleging discrimination with respect to disability, sex (including sexual harassment), sexual solicitation and reprisal in employment.
The original drafted Application by the self represented litigant was described by the Tribunal described as "vague", "lacking particulars" "disjointed, not in chronological order" and "rambling".
I was retained after a series of Request for Orders were made  by the Respondents to dismiss Cadarette's Application for various reasons. As a result of my work, which involved a diligent review of various documents, other evidence and careful interviewing, a request was made to amend the Application and 71 paragraphs of proposed amended pleadings were made: "The proposed amendments, for the most part, provide particulars about the what, who, when, and where that the Tribunal requires an applicant to provide in response to Question 8 of the Application form and essentially constitute a new application."

The Respondent opposed the amendment of the pleadings and mocked the Applicant's self-represented status:
It is not sufficient, Peel submits, for the applicant to claim that she was a layperson when she filed the Application and is now represented by counsel. She is, Peel submits, is a sophisticated police officer with experience in writing reports, and the letters that she attached to her Application demonstrate her ability to raise her complaints and raise them with senior officials. It “defies reality” for the applicant to claim that she forgot or was unaware of her allegations until she was represented by counsel.
The Tribunal however, reminded the Respondents that:

[10] Compared with the Application and the supporting material filed by the applicant, which, as described above, is disjointed, vague, and contains very generalized allegations, the proposed amendments are specific, and set out, for the most part, time frames for the allegations.
The Tribunal then engaged in balancing the rights and interests of Applicant and Respondents:
[11] In my view, there is some unfairness to a respondent when an applicant, after having filed his or her Application and after a Response has been filed, retains counsel and counsel drafts which is essentially a new Application which cures any potential defects in the initial Application. However, in determining requests to amend applications filed under section 34 of the Code, 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 Dube v. Canadian Career College, 2008 HRTO 336 (CanLII), 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 (CanLII), 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563 (CanLII), 2009 HRTO 1563. Further, the Tribunal has held that section 34(1) of the Code only applies to when an applicant may file an Application and not to when he or she can seek to amend an Application. See Grills v. Proctor and Gamble Inc., 2011 HRTO 2009 (CanLII), 2011 HRTO 2009 at para. 25.

Ultimately, in respect to the existence of a poisoned work environment, failure to properly investigate her matter, discrimination based on disability and reprisal actions the Tribunal allowed a significant amount of the pleadings to be amended: "1. The applicant’s request to amend her Application is allowed to include paras. 14, 15, 16, 17, 24, 30, 31, 32, 35, 38, 40, 41-63, 64-66, 67-71 and her requested remedies of the proposed amendments."

This is a complex and has resulted in several interim decisions and case management directions, some of which are reported: 

Cadarette v. Peel Regional Police Services Board, 2011 CarswellOnt 8981, 2011 HRTO 1660 (CanLII)

Cadarette v. Peel Regional Police Services Board, 2010 CarswellOnt 9355, 2010 HRTO 2399 (CanLII)

In November 2012, the Report of the Ontario Human Rights Review 2012 authored by Andrew Pinto he noted at page 45 that "Out of the 143 merits cases I analyzed, applicants were self-represented in 91 cases or 64% of the time; and respondents were self-represented in 15 cases or 10% of cases, indicating that respondents retained a representative 90% of the time for full hearings."

The take away from this complex litigation is the best couse of action when contemplating human rights litigation is to consult competent counsel from the inception - poorly drafted pleadings can be a recipe for summary hearing, claims that a prima facie case does not exist or claim that the allegations does not related to a Code-related ground.

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights matters involving discrimination and harassment in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario. Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post(2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. His current cases include the competing rights case of Taylor-Baptistev. Ontario Public Service Employees Union, 2012 HRTO 1393 that is at the reconsideration stage at the HRTO; Roachet al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act. Selwyn is also acting as co-counsel for the families of three deceased persons killed during a civil demonstration in Linden, Guyana.

1 comment:

Angelina Jukić said...

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