Ontario Human Rights Commission v. Hetherington, 2003 HRTO 24

Human Rights Tribunal of Ontario

Between: Ontario Human Rights Commission (Commission) -and- August (Complainant) -and- Richard Hetherington and Richland Marketing Inc. o/a Richland Technical Services (Respondents)

Interim Decision

Adjudicator: Patricia E. DeGuire Date: October 20, 2003 Citation: 2003 HRTO 24

Appearances Ontario Human Rights Commission: Nina Gandhi, Student-at-law August, Complainant: On her own behalf Richard Hetherington, and Richland Marketing Inc. o/a Richland Technical Services, Respondents: No appearance

Introduction

1On August 22, 2001, August ("Complainant") filed a complaint with the Ontario Human Rights Commission ("Commission"). She alleges that the Respondent had infringed two of her rights, namely: her right to equal treatment with respect to employment without discrimination based on her gender, as protected under subsection 5(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended ("Code"); and her right to freedom from harassment in the workplace based on her gender, by her employer, agent of the employer or another employee, as protected under subsection 7(2) of the Code: ("Complaint"). The referral documents show Rick Hetherington as the Respondent.

2The Commission referred the subject-matter to the Human Rights Tribunal of Ontario ("Tribunal") in December 2002. The Tribunal held an electronic Pre-hearing Conference ("Conference") on March 31, 2003.

3During the Conference, the Tribunal heard a motion brought by the Commission. The Complainant supported the motion. The Commission sought an Order to add Richland Marketing Inc. o/a Richland Technical Services as a Respondent to this Complaint and to amend the Personal Respondent's name from Rick Hetherington to show Richard Hetherington.

4The Personal Respondent did not participate in the Conference. The Tribunal is satisfied that he had proper notice and ample opportunity to do so.

5The Tribunal reserved its decision.

6These are the Tribunal's Reasons for its decision on which it reserved on March 31, 2003 and rendered orally on May 5, 2003.

Issues

[7] The Tribunal dealt with the following issues:

• Should the Tribunal amend the Complaint to show the named Respondent as Richard Hetherington?
• Should the Tribunal amend the Complaint to add Richland Marketing Inc. o/a Richland Technical Services as a Respondent to this Complaint?

Decision

8The Motion is granted. The proper order is dealt with under the section captioned "Order".

Commission's Position

[9] In support of its motion the Commission adduced the following information by way of Affidavit and Exhibits:

• Richard Hetherington was an employee and later had a contractual relation with York Advertising Ltd./York Mailings ("York") during January 1995 to February 2001. (Affidavit of Brian Smith).
• The Complaint alleges that Richard Hetherington's conduct towards the Complainant violated specific rights and freedom protected under the Code.
• Richard Hetherington is the director, president, secretary and treasurer of Richland Marketing Inc., an entity that was incorporated on March 24, 1999. That entity is registered under the business names report as Richland Technical Services since April 19, 1999, and would expire on April 18, 2004. (Exhibit B of Brian Smith's Affidavit).
• Richland Technical Services billed York for computer consulting services provided by Richard Hetherington in November 1999, March 2000 and January 2001. (Exhibit D of Brian Smith's Affidavit).

[10] The Commission made several factual and legal submissions with respect to the order being sought, including:

• That section 39 (3) confers power on the Tribunal to add a party where it appears to the Tribunal that the party had infringed the right.
• That there is some reliable evidence before the Tribunal that could lead it to make a finding of liability against the proposed Respondents. The prospective Corporate Respondent would not suffer no real or substantial prejudice: Payne v. Otsuka Pharmaceutical Co. Ltd. and Minoru Okada et al (No. 2) (2001), 2001 CanLII 26231 (ON HRT), 41 C.H.R.R. D/52 (Ont. Bd. Inq.) ("Payne").
• Constructively, the prospective Respondents have been given proper notice of this motion. Richard Hetherington had notice of the Complaint. It had sent its pleadings to the Personal Respondent and the prospective Corporate Respondent by express post. The tracking system had indicated that the packages had been delivered to the person at that address.
• It had not received any pleadings or disclosure from the Personal or prospective Corporate Respondents. However, in its pleadings, it had stated that the Commission might bring a motion to add the Personal Respondent's corporation as a party.
• By holding many executive posts at Richland Technical Services, including president, Richard Hetherington is the directing mind of the prospective Corporate Respondent. Richard Hetherington had knowledge of the Complaint from the onset. Through its directing mind, the prospective Corporate Respondent also had had knowledge of the Complaint from the onset. Thus, adding the corporation as a party does not raise any new issue. Further, it causes no real or substantial prejudice to the corporation. The Commission relies on Leroux v. Ontario (Human Rights Comm.) (1999), 1999 CanLII 15059 (ON CTGD), 35 C.H.R.R. D/338 (Ont. Ct. (Gen. Div.), ("Leroux")).
• As such, the prospective Corporate Respondent could be held liable for his actions. It cites Drummond v. Tempo Paint and Varnish Co. (No. 4) (1998), 1998 CanLII 29860 (ON HRT), 33 C.H.R.R. D/175 (Ont. Bd. Inq.) to support this argument.

11During the motion, the Commission admitted that it did not send copies of its March 3 and 13, 2003, letters to the Personal or prospective Corporate Respondents. Both letters informed the Tribunal of its intention to bring this motion during the Pre-Hearing Conference. However, the Commission states that it had served its motion materials on the Personal and prospective Corporate Respondents.

12By letter dated April 4, 2003, the Commission informed the Tribunal that the motion materials it had sent to the Personal and prospective Corporate Respondents had been returned to its office, by inference, on April 3, 2003. It said that according to Canada Post's tracking system, the packages had "re-entered the tracking system on March 29, 2003." The return packages indicated that the addressees had moved. Further, the Commission stated that according to its searches including Equifax, driver's licence and Canada 411, the Personal and prospective Corporate Respondents' addresses had not been changed.

13In addition, the Commission's April 4, 2003 letter states that a process server had served Richard Hetherington with its pleadings, disclosure and the Tribunal's letter dated January 16, 2003, which sets out certain scheduled dates in this matter. The Commission states that the process server had informed it, that upon identifying an adult male, who answered to the name of "Richard", he had handed him those documents. That person threw the package back at the process server.

14Based on the content of the Commission's April 4, 2003 letter, the Tribunal directed the Commission to have a process server deliver the motion materials to the Personal and prospective Corporate Respondents at the last known address. If the server was unable to serve either or both, the server should swear an Affidavit to that effect. Further, the Tribunal directed the Commission to submit the Affidavit to it by April 29, 2003. The Commission complied with the Tribunal's directives promptly. It filed an Affidavit by Bailiff Bill Kilrea stating he had served the Personal and prospective Respondents on April 22, 2003.

15On the basis of that information, the Tribunal directed the Personal and prospective Corporate Respondents to make written submissions and file and serve them by May 1, 2003. The Commission, if required, could have filed and served a Reply.

16The Tribunal stipulated that if it did not received submissions from the Personal and prospective Corporate Respondents, it would conclude that they had declined to participate in the motion and shall take a decision on the motion heard on March 31, 2003.

17The Personal and the prospective Corporate Respondents did not participate in the motion. They did not adduce any evidence at all even though they had ample opportunity to do so.

18On May 5, 2003, the Tribunal informed all the parties that it had granted the motion.

Reasons for its Decision

19The Tribunal has jurisdiction to grant the order the Commission sought. Subsection 39(3) of the Code confers authority on the Tribunal to add a party under clause 39(2)(d) at any stage of the proceedings on terms it deems proper. Clause 39(2)(d) means any person appearing to the Tribunal to have infringed the right.

20The Tribunal is satisfied that the Commission took more than ample steps to serve the prospective Personal and Corporate Respondents. The Tribunal is convinced that the Personal and prospective Corporate Respondents may be evading service. The situation is consistent with that which calls for an order for substituted service. (Misener v. Hotel Dieu Hospital (1983), 1983 CanLII 1869 (ON HCJ), 42 O.R. (2d) 694) ("Misener, supra").

21By its letter dated April 25, 2003, the Tribunal informed all the parties that it had determined that the Personal and prospective Corporate Respondents were duly served effective April 22, 2003. Further, it directed that all future communication to either Respondent in this matter be sent to the last known address by regular mail: (Misener, supra).

22The Tribunal finds that the evidence adduced by the Commission as set out in paragraph 9 above, if proven, could result in a finding of liability against Richard Hetherington. It is satisfied that the evidence concerning the business relation between the Personal and prospective Corporate Respondent is reliable and could lead to a finding of liability against the Personal Respondent. In particular, the Tribunal finds that Richard Hetherington did perform computer services for York at the relevant times.

23The Tribunal finds that, among other key positions, Richard Hetherington is the president of Richland Marketing Inc. o/a Richland Technical Services ("Richland"). Thus, the Tribunal finds that Richard Hetherington is the only directing mind of Richland.

24The Tribunal finds that at all relevant times, the computer services Richard Hetherington performed for York were done in the capacity as an employee of York as well as in the capacity of all the corporate hats he wears for Richland. There is a real and strong nexus between York, Richland and Richard Hetherington. Thus, the Tribunal finds that Richland had knowledge of the Complaint from the onset. Therefore, adding Richland as a party does not raise any new issue at all. The corollary is that Richland suffers neither real nor substantial prejudice by adding it as a party. (Payne, supra and Leroux, supra).

25The Tribunal finds that because Richard Hetherington was a York employee at relevant times, does not shield him from personal liability for his alleged conduct. Therefore, his relation with York is no lawful excuse for not adding him or Richland as a party.

Order

[26] Consistent with the Tribunal's finding, it orders that:

• The Complaint be amended to change the name of the Personal Respondent from Rick Hetherington to Richard Hetherington;
• Richland Marketing Inc. o/a Richland Technical Services be added as the Corporate Respondent in this matter;
• The title of proceeding be amended to reflect this Order; and
• There be substituted service for any other documents required to be served personally or by an alternative to personal service on the Respondents in this matter.