Ontario Human Rights Commission v. 621509 Ontario Inc., 2006 HRTO 22

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission

Commission

-and-

Mary-Ann Greenhorn

Complainant

-and-

621509 Ontario Inc. o/a Belleville Dodge Chrysler Jeep and Terry Belch

Respondents

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: August 14, 2006

Citation: 2006 HRTO 22

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

INTRODUCTION

1This is a complaint brought under the Human Rights Code, R.S.O. 1990, c.H.19 as amended ("the Code"), alleging an infringement of the Complainant's right to be free from discrimination in employment on the basis of sex. The Complaint was filed February 25, 2003 and was referred to the Tribunal on October 13, 2005.

2This decision addresses a Motion brought by the Complainant seeking to add Belleville Dodge Chrysler Jeep Eagle as a respondent in these proceedings. The Tribunal notes that the correct legal name of the proposed respondent is "621509 Ontario Inc. operating as Belleville Dodge Chrysler Jeep."

Background

3The essence of the Complaint filed by Ms. Greenhorn is that during the course of her employment with Belleville Dodge Chrysler Jeep Eagle ("Belleville Dodge"), she was subjected to conduct by certain co-workers, including Mr. Belch (who was her immediate supervisor and the sales manager of Belleville Dodge), which is alleged to constitute sex discrimination and sexual harassment. The Complaint also alleges facts which if true, could establish that she was subjected to a poisoned work environment, and could establish a failure on the part of Belleville Dodge to properly respond to the situation.

4The original Complaint filed on February 25, 2003 identified both Mr. Terry Belch and Belleville Dodge as respondents. However following its investigation, the Commission decided to refer the Complaint only as against Mr. Belch. The Commission decided that it would not refer the Complaint as against Belleville Dodge. The Reasons provided were as follows:

1. There is insufficient evidence to indicate that the complainant was subjected to sexual harassment, sexual solicitation or reprisal for the rejection of a sexual solicitation by the corporate respondent.

2. The evidence indicates that the corporate respondent was supportive of the complainant following her assault and provided her with paid time off work.

3. The evidence is insufficient to indicate that the complainant asked the respondent to be moved away from working with the personal respondent Belch following the sexual assault.

4. The evidence indicates that the complainant reported the allegations about the "hissing"" sound made by a co-worker but the corporate respondent did not follow up on the allegations as the co-worker left on sick leave and has not returned to the workplace.

5. The evidence indicates that the complainant resigned from her employment.

5The Complainant did not seek reconsideration of the Commission's decision under section 37(1) of the Code, but has brought this Motion seeking to add Belleville Dodge as a respondent.

6After receiving the Complainant's Motion, the Tribunal set a schedule for the parties to provide written submissions, and indicated that the Motion would be determined on the basis of those submissions. The Tribunal received submissions from the Complainant, Mr. Belch and the proposed respondent Belleville Dodge. The Commission sent correspondence indicating that it took no position on the Complainant's request.

Position of the Parties

7The Complainant argues that the Code permits the Tribunal to add a party, and the relevant jurisprudence supports the request in this case. Sections 39(2) and (3) of the Code read as follows:

Parties

(2) The parties to a proceeding before the Tribunal are,

(a) the Commission, which shall have the carriage of the complaint;

(b) the complainant;

(c) any person who the Commission alleges has infringed the right;

(d) any person appearing to the Tribunal to have infringed the right;

(e) where the complaint is of alleged conduct constituting harassment under subsection 2 (2) or subsection 5 (2) or of alleged conduct under section 7, any person who, in the opinion of the Tribunal, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct.

Adding Parties

(3) A party may be added by the Tribunal under clause (2) (d) or clause (2) (e) at any stage of the proceeding upon such terms as the Tribunal considers proper.

8The Complainant relies on the Tribunal's previous decisions in Payne v. Otsuka Pharmaceutical Co. [2001] O.H.R.B.I.D. No.23, hereafter Payne (2001, Bd. Inq.) and Epstein v. York Condominium Corporation No. 67, 2003 HRTO 14. The Complainant submits that in Payne (2001, Bd. Inq.), the Tribunal established a two-part test when considering a request to add a party: first, is there some reliable evidence on which the Tribunal could make a finding of liability against the party? Second, would the proposed party suffer real and substantial prejudice not capable of being cured? In addition, the Complainant submits that the Tribunal is not prevented from adding a party, even if the Commission had considered whether to proceed against that party and decided against doing so. In this regard the Complainant relies on the Divisional Court decision in Payne v. Ontario (Board of Inquiry, Human Rights Code) [2000] O.J. No.1896 (Ont. Sup. Ct. Jus.), hereafter, Payne (2000, Ont. Sup. Ct.).

9More substantively, the Complainant makes two arguments in support of her request to add Belleville Dodge. First, she alleges that Mr. Belch was a directing mind of the proposed respondent and therefore it may be liable for his actions. Second, the alleged sexual harassment contributed to a poisoned work environment, which she was forced to endure.

10The Respondent Terry Belch submits that the Commission had conducted a full investigation and decided not to refer as against Belleville Dodge. He argues that it would be improper and unfair to now permit the Complainant to add Belleville Dodge. He further alleges that the only reason the Complainant seeks to add Belleville Dodge is that he (Belch) has limited financial resources to satisfy any potential damage award, and the Complainant is simply seeking to find a respondent who would have the ability to pay.

11Belleville Dodge does not dispute the state of the law as articulated by the Complainant. It argues however that the two-part test in Payne (2001, Bd. Inq.) is not met in this case.

12It submits that the Complainant has not advanced sufficient reliable evidence to establish a possible finding of liability against Belleville Dodge. Counsel for Belleville Dodge asserts that the facts alleged in the Complaint and disclosed during the Commission's investigation support only an arguable violation of Sections 5(2) and 7, and that Section 45(1) of the Code precludes a finding of corporate liability as against Belleville Dodge.

13Section 45(1) reads as follows:

Acts of officers, etc.

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 44 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

14Belleville Dodge also argues that it would be prejudicial for the Tribunal to add Belleville Dodge as a respondent since it would incur legal expenses associated with defending the Complaint, and suffer the stigma associated with being named as a respondent in a human rights proceeding.

Decision and Analysis

15After careful consideration of the submissions of the parties, and the jurisprudence, I have concluded that Belleville Dodge should be added as a respondent in these proceedings.

16In reaching this decision, I recognize the concerns and dilemma faced by Belleville Dodge and indeed other potential respondents in human rights complaints. Under the scheme of the Code, the Commission undertakes an investigation and thereafter is given the exclusive jurisdiction to decide whether to refer the complaint to the Tribunal. Subject to a reconsideration request made to the Commission, the decision is final. The Tribunal has no jurisdiction to review or overturn a decision not to refer a complaint, even though the complaint may allege facts, which if true, clearly disclose a violation of the Code.

17However where, as here, the Commission has decided to refer a complaint as against at least one of the respondents named in the original complaint, then the Tribunal is said to have jurisdiction to add a party, even if the Commission had decided not to proceed against that party.

18In Payne (2000, Ont. Sup. Ct.), the Divisional Court found that Section 39(3) of the Code gives the Tribunal independent authority to add parties "without regard to what the Commission may have previously decided." The Code provides for a de novo hearing once a complaint is referred to the Tribunal. The Tribunal has the jurisdiction (and is required) to determine if a right of the complainant has been infringed, who infringed the right, and what remedy is appropriate in the circumstances. Section 39(2) sets out who the parties to a proceeding before the Tribunal shall be. The Tribunal must, on a Motion to add a party under Section 39(3), consider whether the provisions of Sections 39(2)(d) or (e) are met and on that basis, determine whether it is appropriate to add the proposed party.

19In the present case, there are facts alleged in the Complaint that if proven, and absent some defence established by the Respondent, could clearly support a finding that Belleville Dodge violated the Complainant's rights under the Code. For example:

• Mr. Belch was the Manager of the Sales Department and Ms. Greenhorn's supervisor.
• Various co-workers, including Mr. Belch, would make gestures and comments related to the Complainant's breasts.
• Mr. Belch insisted that the Complainant attend a party at which the Complainant alleges that she was sexually assaulted.
• Mr. Belch refused to assist in the investigation of the incident.
• The Complainant reported the incident to other managers of Belleville Dodge, but she was told to "get over it".
• The Complainant quit her employment because, as she stated in her Complaint, "I could no longer stand being subjected to sexual harassment in my workplace, nor could I work with Mr. Belch."

20Counsel for Belleville Dodge filed an affidavit of Ralph Neale, principal of Belleville Dodge and also referred to witness statements collected during the Commission investigation. On the basis of these documents, Belleville Dodge seeks to impugn the veracity of the allegations set out in the Complaint.

21I do not believe that on a Motion to add a party pursuant to section 39(3) it is appropriate for the Tribunal to consider and weigh affidavit evidence presented by the parties or information collected during the Commission's investigation. Assessments of credibility and the weighing of evidence is properly done at a hearing and during the decision making process that follows.

22In Payne (2001, Bd. Inq.), the Tribunal held that the first branch of the test when deciding whether to add a party is whether there is "some reliable evidence" to support a finding against the proposed party. In Epstein, supra the Tribunal held that there need only be an "appearance" or a "semblance of a violation." Given that where a motion to add a party is brought at a preliminary stage of the proceedings there is no "evidence" before the Tribunal but only allegations, the wording used by the Board in Payne (2001, Bd. Inq.) must be considered in context.

23Therefore, considering the de novo nature of the Tribunal process and the broad jurisdiction of the Tribunal set out in Section 39, the question is whether there are facts alleged, which if true, would support a finding that Belleville Dodge has violated the Code. I find that there are.

24Belleville Dodge asserts that the allegations in the Complaint only support a possible violation of Sections 5(2) and 7 of the Code and section 45(1) precludes a finding of corporate liability. I do not read section 45(1) that way. While section 45(1) is a deeming provision, it does not operate to limit findings of corporate liability for actions of managers. Such an interpretation would be contrary to one of the fundamental principles of the Code - that its object is remedial, not punitive, and the person or entity in the best position to ensure a discriminatory free workplace is the employer. (See Robichaud v. Canada (Treasury Board) 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84.)

25In any event, I do not agree that the facts alleged in the Complaint support only a possible violation of sections 5(2) and 7. The law has long required employers to ensure a harassment free workplace, and has identified specific obligations placed on employers, such as the duty to investigate. In addition, the facts alleged support adding Belleville Dodge under the provision of section 39(2)(e).

26On the second branch of the Payne (2001, Bd. Inq.) test, whether adding the party would give rise to substantial prejudice, I agree with the submissions of the Complainant. Belleville Dodge was a full participant in the Commission investigation process. Its employees gave witness statements, it received disclosure and it responded to the evidence collected by the Commission. Although substantial time has passed since the incidents giving rise to the Complaint, this is not a situation where a proposed party has had no knowledge of its potential involvement and would be hampered in making a full answer and defence. Belleville Dodge asserts only that it would be prejudiced because it would incur legal expenses and would suffer the stigma associated with being a named respondent. With respect, that concern was specifically addressed and rejected by the Divisional Court in the Payne (2000, Ont. Sup. Ct.) decision. In my view, prejudice in this context refers to the ability of a party being able to make full answer and defence to the allegations.

27I find that Belleville Dodge will not suffer substantial prejudice.

28Finally, I would emphasize that the Tribunal has made no findings of wrongdoing or violations by any person or party. The Complainant will have to establish through evidence the truth of the allegations in her Complaint, and the Respondents will be able to adduce evidence and raise defences. As mentioned above, the decision to add Belleville Dodge is based on a determination that there are facts alleged in the Complaint that if proven, and absent some defence established by the Respondent, could support a finding that Belleville Dodge violated the Complainant's rights.

ORDER

29621509 Ontario Inc. operating as Belleville Dodge Chrysler Jeep shall be added as a Respondent in these proceedings. The parties are directed to file their pleadings and make disclosure in accordance with the Tribunal's Rules.