Rule 1.7(c) of the Tribunal’s 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”. In 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. I found that the Application should be amended as described in the RFOP. The amendments to change “gender identity” to “sex” and “ethnic origin” to “creed” do not change the allegations but ensure that the grounds more accurately reflect the particulars contained in the Application. When filing her Application, the applicant did not have the benefit of legal representation. The applicant selected the ground “gender identity” to represent the discrimination she allegedly experienced as a woman. I find that the ground “sex” more accurately captures the allegations. The applicant also chose the ground “ethnic origin” but handwrote “(religion)” next to the ground to capture the discrimination she allegedly experienced as a person of the Catholic faith. I find that the ground “creed” more accurately captures the allegations. I also find that the Application should be amended to include the ground of reprisal. The substance of the allegation of reprisal is already contained in the Application and addressed in the Response. The respondents have not argued that they will be prejudiced by the amendments. I find that there is no apparent prejudice to the respondents in granting the Request. Request for an Adjournment
In interpreting this section, the Tribunal is guided by two decisions of the Supreme Court of Canada: British Columbia (Workers’ Compensation Board) v. Figliola, (“Figliola”) and Penner v. Niagara (Regional Police Services Board), . This Tribunal has considered how these decisions impact the Tribunal’s interpretation of section 45.1 in a number of cases, notably, Claybourn v. Toronto Police Services Board, (“Claybourn”). In Post v. Stevens Resources Group, (“Post”), the Tribunal reviewed these decisions and concluded: According to Figliola and Penner, once it has been confirmed that concurrent jurisdiction exists to decide the rights issues, there are three primary questions to consider in order to determine if another proceeding has appropriately dealt with the substance of the Application. These are: whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether it would be unfair to apply the doctrine of issue estoppel in the particular circumstances of the case? There is no question that a proceeding before an employment standards officer as a result of a complaint under the Employment Standards Act, 2000, SO 2000, c. 41 (“ESA”) is a “proceeding” within the meaning of s. 45.1 of the Code: see Smith v. Singh, 2015 HRTO 887; Chen v. Harris Rebar, ; James v. Kuehne & Nagel, ; Windrem v. JF Moore Lithographers Inc., ; and Law v. Noonan, . The Tribunal’s jurisprudence is clear that in making a determination of whether a matter has been appropriately dealt with, the issue is not whether the applicant has received the result and remedy that he or she was hoping for. The applicable criterion is whether the other proceeding appropriately dealt with the substance of the Application. See Sikorski v. Vaughan (City), 2015 HRTO 1740 at para. 15 and Taylor v. Hamilton (City), 2013 HRTO 1591.