Female Softball Players (by Michael Sharpe) v. City of Victoria (No. 2), 2024 BCHRT 307
Date Issued: October 29, 2024
File(s): CS-000715
Indexed as: Female Softball Players (by Michael Sharpe) v. City of Victoria (No. 2), 2024 BCHRT 307
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Female Softball Players (by Michael Sharpe)
COMPLAINANTS
AND:
City of Victoria
RESPONDENT
REASONS FOR DECISION
APPLICATION TO AMEND A COMPLAINT
Rule 24(4)(a) and (c)
Tribunal Member: Robin Dean
Counsel for the Complainant: John S. Heaney
Counsel for the Respondent: Thea Hoogstraten
I INTRODUCTION
[1] On February 10, 2020, Michael Sharpe filed this human rights complaint on behalf of a class of people now defined as:
all female softball players registered with the Beacon Hill Baseball Softball Association who have played at Pemberton Park since the start of the 2019 season and/or currently play at Pemberton Park [the Players ]
[2] The Players apply to amend their complaint three months and three weeks before the hearing date to add unspecified allegations of a continuing contravention dating back to 2016. In doing so, they also seek to expand the class to include softball players who played in the 2016, 2017, and 2018 seasons—a group of approximately 100 people.
[3] The City of Victoria opposes the application to amend given that the amendments are unspecified and says that if the amendments were allowed it would not be able to prepare for the hearing in time due to the number of additional class members and the time and resources that would be required to investigate and respond to eight-year-old allegations.
[4] In these reasons, I must decide whether the amendment will facilitate a just and timely resolution of the complaint.
[5] I deny the application for two reasons. First, the Players have not expressly set out what amendments they are seeking, as required by the Rules. Second, the amendment application has been filed in close proximity to the hearing date. Given the likely additional process steps that would have to be taken if the amendments were permitted, which might put the hearing dates in jeopardy, there is not enough time in the hearing process to permit the amendment.
II BACKGROUND
[6] The following background is largely taken from Vice Chair Cousineau’s Reasons for Decision denying the City’s application to dismiss, which are indexed at 2023 BCHRT 112:
[1] The Beacon Hill Baseball & Softball Association provides baseball and softball programs for children in the City of Victoria. It contracts with the City to use parks for its programming. In 2016, the Association decided to focus its softball program in Pemberton Park. It asked the City to approve and support work to change the baseball field at Pemberton Park into a softball field, and to upgrade the facilities. After phase one of those upgrades was completed, the process stalled at phase two. At this phase, the Association’s priority was to install a “skinned infield” and a batting cage. The City did not initially approve this work. For the 2019 and 2020 seasons, softball players played at Pemberton Park without a skinned infield and batting cage.
[2] All the Association’s softball players are girls. … Mr. Sharpe alleges that the City’s conduct in response to the Association’s requests related to Pemberton Park deprives the Players of opportunities to play softball at a competitive level and develop in a sport where Canadian women excel internationally. He says the conduct stands in contrast with the City’s approvals for upgrades and facilities used for baseball, a sport for which 96% of the Association’s players are boys. He alleges that the disparities, and the impacts on the Players, are discrimination based on sex, in violation of s. 8 of the Human Rights Code.
[3] The City denies discriminating. It says that it is the Association, and not the City, that has chosen to focus its softball program at Pemberton Park. It says there are other softball fields in the City that the Association could apply to use, and/or that the Association could run its softball program at the same park as its baseball program, as it had done before 2016. It says that its decisions about Pemberton Park were made according to its usual processes, accounting for all the diverse needs of the community.
[7] The Tribunal denied the City’s application to dismiss in August 2023, and the hearing in this matter is scheduled for two weeks during January 2025.
III DECISION
[8] To add allegations to a complaint, a complainant must file a Form 3 – Amendment and deliver a copy of the Form 3 to the other participants: Rule 24(2). The Form 3 has space to provide details of the amendment, or, if the amendment is lengthy, the complainant may attach up to three pages.
[9] Here, the Players did not file a Form 3, nor do they detail the amendments sought in any specific particularity in their application to amend. They say that the application to amend is to:
a. amend the Complaint style of cause so that the Complainants are described as “All female softball players registered with the Beacon Hill Baseball Softball Association who have played at Pemberton Park since the start of the 2016 season and/or currently play at Pemberton Park”; and
b. bring into scope of the Complaint allegations of continuing contravention by the Respondent, the City of Victoria, from the start of the 2016 softball season to the end of the 2018 season.
[10] The Players do not say what these “allegations of continuing contravention” are. However, the Players argue that the City has had in its possession, has had notice of, and has been in a position to investigate the facts underlying the allegations of continuing contravention from 2016 to 2018, either through the pleadings, the evidence supporting the response to the application to dismiss, or the documents disclosed through the hearing process. They point to some of these documents in their argument supporting the amendment application and say that it should have been clear to the City from the beginning that events in 2016 to 2018 were at issue in this complaint. Finally, they argue that the City has been on notice that the Players might amend their complaint to add in the additional players since March 2024.
[11] The problem with this argument is that respondents should not have to guess what the allegations are from the documents and arguments before them. The rules surrounding amendments are there to prevent respondents from facing an ever moving target of allegations so they know the case against them. Nor should respondents have to prepare for amendments that have not yet been made. Given the vagaries of litigation, it is not enough for a complainant to say they are planning to make an amendment. The complainant must file Form 3 and, if necessary under the Rules, make an application to the Tribunal. These fairness principles ensure the just and timely resolution of complaints.
[12] Further, the Tribunal should also not have to guess. I cannot tell from the arguments on the Players’ application what the proposed amendments are, which leads to difficulties in determining whether to permit the amendments. Because the Players did not file a Form 3 or otherwise detail the specifics of the amendments, I cannot allow the general amendments sought. In any event, I would have also denied the amendment application due to fairness concerns arising from the proximity to the hearing.
[13] A complainant must apply to amend a complaint if the hearing date is less than four months from the date the amendment is filed: Tribunal’s Rules of Practice and Procedure [ Rules ], Rule 24(4)(c). The overarching purpose of the Rules is to facilitate the just and timely resolution of complaints. The requirement that a party must apply to amend their complaint in the circumstances set out under Rule 24(4), is generally aimed at ensuring fairness between the parties and within the Tribunal’s complaint process.
[14] In Christensen v. Caretenders Financial Services Inc. , 2023 BCHRT 205, the Tribunal expanded on the general principle of fairness that underlies Rule 24 and explained how it applies in the context of an application to amend a complaint that was made less than four months before the start of the hearing:
Procedural fairness requires that a party affected by a decision must know the case against them and be provided a meaningful opportunity to respond to it. The closer to a hearing an application to amend is filed, the closer the parties are to having completed all the pre-hearing steps, such as disclosing all arguably relevant documents, contacting and arranging witnesses to give evidence about specific elements of the complaint, and preparing their written argument and questions for the other side’s witnesses. Where a hearing date is within four months and parties have completed much of their pre-hearing preparation, allowing an amendment has the potential of creating a moving target, and could result in a party not having the time or resources to meaningfully respond. This potential unfairness will be more acute where the amendment is more substantial and removed from the allegations in the original complaint. Similarly, the closer to the hearing date, the greater the potential for unfairness. (para 12) [emphasis added]
[15] In Christensen, the Tribunal denied the complainant’s application. The Tribunal found that the amendment provided an alternative theory of the complaint and sought to add an allegation of retaliation less than three weeks before the hearing. The Tribunal said that if the application were granted, the hearing would likely have to be adjourned because the respondents would not have sufficient time to meaningfully consider and respond to the new allegations: at para. 21. Another relevant factor was the absence of an explanation by the complainant as to why she did not file her application sooner.
[16] Therefore, many of the considerations on an application such as this focus on the effect of the amendments on the hearing process, including whether the hearing would have to adjourn to a later date if the amendments were allowed. As mentioned above, it is difficult to assess the effects here given the unspecified nature of the amendments sought by the Players.
[17] However, what we do know is that the Players seek to add an additional 100 people to the class and seek to add new allegations to the complaint. This is already a complex matter involving two weeks of hearing time. At this point, parties should be preparing for the hearing. The amendments would likely take away from this preparation. If the amendments are allowed, it would likely require an application for particulars as well as an amended response to the complaint. Further disclosure might be necessary. The amendment would likely result in the addition of witnesses to the witness list and would in all likelihood result in an application for an adjournment of the hearing. At the very least, it would likely require more hearing days, which could slow down the hearing process – and complaint resolution – significantly. While we do not know exactly what would occur as a result of the amendments, I am satisfied that some additional steps would have to be taken, putting the hearing dates in jeopardy.
[18] The Players say that they did not file this application sooner because of the ‘legally doomed’ application to dismiss process. They say that they did not know if the complaint would proceed. I am not persuaded by this argument. An amendment to a complaint should be made as early in the process as possible, and amendments are possible even if an application to dismiss is outstanding. Further, the Players say that they were unrepresented when the complaint was filed. However, the Players have been represented by counsel for four years now, and their counsel knew that they wanted to amend the complaint at least in March 2024, the same time that the hearing dates were set. Six months is a significant amount of time to wait to take steps given the context of the hearing schedule.
[19] For these reasons, I am satisfied that the amendments would not facilitate the just and timely resolution of this complaint, and I deny the amendment application.
IV CONCLUSION
[20] While the Code serves to provide redress within its purposes to those who have experienced discrimination, it must be done fairly: MP v. JS, 2020 BCHRT 131 at para. 18. It would not be fair to require the City to respond to unspecified allegations and a large expansion of the class with less than four months before the hearing. I deny the application to amend the complaint.
Robin Dean
Tribunal Member