HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Selwyn Pieters

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

The Liquor Control Board of Ontario, Store 568

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: July 25, 2007

Citation: 2007 HRTO 22

Indexed as: Pieters v. Liquor Control Board of Ontario, Store 568

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 Interim Decision determines a motion by the Respondent, The Liquor Control Board of Ontario, Store 568 (“LCBO”), to add Access Security Professionals Incorporated (“ASP”) as a Respondent in this matter. The motion was heard in writing. The LCBO and the Commission filed submissions supporting the order requested. The Complainant took no position on the motion. ASP opposes the order requested and filed submissions and an affidavit in response.

2The motion is allowed and ASP is added as a Respondent. The facts alleged could support an order against ASP and it has not demonstrated that adding it as a party would impair its ability to make full answer and defence to the allegations.

BACKGROUND

3The Complainant alleges that while he was shopping at LCBO Store 568 on December 23, 2003, a series of events occurred that constitute racial profiling, and therefore discrimination. Some of the events alleged to be racial profiling are actions by a security guard employed by ASP (“the security guard”). ASP acknowledges that it provided security services on a contract basis to Store 568 at the relevant time and that the allegations made concern its employee.

4The complaint, dated April 13, 2004, named only the LCBO as a Respondent. Affidavit evidence provided by ASP indicates that ASP’s counsel was advised of the complaint and of the Commission’s investigation in January 2005 by the LCBO’s counsel, and that LCBO’s counsel kept ASP’s counsel apprised of the progress of the investigation. ASP wrote a letter to the Commission with submissions in response to the s. 36 case analysis report, although they were not accepted by the Commission since ASP was not a party. Timothy Thomas, President of ASP, asserts in his affidavit that ASP did so “only to salvage the business relationship between it and the LCBO”.

ANALYSIS

(i) Legal Principles

5The Tribunal’s jurisdiction to add a party as a Respondent arises from ss. 39 (2) and (3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”) relevant portions of which read as follows:

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

(a) the Commission, which shall have 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…

(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.

6The legal principles to be applied to a request to add a Respondent were set out in Payne v. Otsuka Pharmaceutical Co., [2001] O.H.R.B.I.D. No. 23, and restated and changed in Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep), 2006 HRTO 22.

7The first stage of the test relates to whether the complaint includes allegations that could lead to liability of the proposed Respondent. As set out at para. 28 of Greenhorn, supra a party can only be added if there are facts alleged that, if proven, could support a finding that the proposed Respondent violated the Complainant’s rights. These allegations must be more than frivolous or mere puffery: Arzem v. Ontario (Minister of Community and Social Services), 2006 HRTO 12 at para. 61.

8When considering this type of request, as held by Chair Gottheil in Greenhorn, supra the Tribunal should not require, consider or weigh affidavit evidence or information collected during the Commission investigation. This case in particular shows why it is inappropriate to do so. The LCBO is a Respondent seeking to have another party added as a Respondent, and a requirement that it demonstrate more than that the allegations could support an order against ASP would force it to argue or support the complaint. A Respondent should not be placed in this type of conflict when seeking to add another party.

9The second stage of the test relates to the addition of the proposed Respondent at the particular stage in the process at which the order is sought. The Tribunal must examine whether the addition of the proposed Respondent as a party would cause substantial prejudice to that party’s ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal: Payne, supra, at para. 20 and Greenhorn, supra at para. 23. The onus to demonstrate such prejudice is, in my view, upon the party opposing the addition.

10To summarize the applicable principles, the Tribunal should consider the following questions on a request under s. 39 (3) of the Code:

(1) Could the allegations made in the Complaint support a finding that the proposed Respondent violated the Code?

(2) Has the proposed Respondent demonstrated that its addition as a party at this stage in the process would impair its ability to make full answer and defence to the allegations, and that such prejudice could not be alleviated by any order the Tribunal might make?

(ii) Application to this Case

11I am satisfied that the allegations could lead to a finding that ASP violated the Code. The Tribunal has found that racial profiling or differential treatment of an individual during an investigation because of race may be discriminatory: Nassiah v. Regional Municipality of Peel Police Services Board, 2007 HRTO 14. The allegations made in this case, accordingly, could support a finding that the conduct of the security guard violated the Code and that his actions occurred in the course of his employment. If the allegations were proven, ASP could be found to have violated the Code because of the conduct of its employee and/or as a result of its own policies and practices: see Greenhorn, supra at paras. 24-25 and Nassiah, supra. The role of the security guard is central to the allegation of discrimination.

12The first type of prejudice asserted by ASP in its submissions is that it did not participate in the Commission’s investigation. Mere lack of formal participation in the Commission’s investigation cannot impair a party’s ability to make full answer and defence under the test. Tribunal proceedings are a hearing de novo; the allegations must be proven at the hearing and the Commission’s investigation notes or case summaries are not admissible to prove or disprove the allegations. Moreover, it is clear that ASP was aware of and attempted to participate in some stages of the investigation process.

13In addition, ASP argues that as a result of the passage of time and the lack of formal notice in the Commission process, “it is unknown to ASP whether it has documents in its possession to aid in its response or whether its employees and officers have sufficient recollection of the events and issues in question”. This assertion is made only in ASP’s written argument, and is not attested to by Mr. Thomas in his affidavit. In my view, a proposed Respondent must demonstrate actual prejudice to its ability to defend the allegations through evidence if the request is to be denied on this basis. This must be more than mere speculation or statements of the possibility of prejudice. There is no actual prejudice demonstrated in this case.

14Accordingly, the test has been met and the motion is allowed.

ORDER

15Access Security Professionals Incorporated is hereby added as a party Respondent in these proceedings. The Registrar is directed to schedule a further Initial Conference Call with all parties including ASP. I am not seized.