HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bruce McKinnon
Applicant
-and-
2176542 Ontario Ltd. o/a BMW Toronto and BMW Canada
Respondents
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: McKinnon v. 2176542 Ontario
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on October 9, 2008 naming 2176542 Ontario Ltd. o/a BMW Toronto (“BMW Toronto”) as a respondent. On October 20, 2008, the Tribunal issued a Notice of Application and delivered the Application to the respondent by regular mail at the address provided by the applicant. The Notice directed the respondent to file a Response with the Tribunal no later than thirty-five (35) days from the date of the Notice. Rule 1.22 of the Tribunal’s Rules of Procedure confirms that a document delivered by mail is deemed received five days after the postmark date.
Failure to Respond
2It is now more than ten days after the date for filing the Response. BMW Toronto has not filed its Response or otherwise communicated with the Tribunal. The Tribunal’s Notice has not been returned.
3A Tribunal application is a legal proceeding. If a violation of the Code is found the Tribunal may order a respondent to make monetary compensation or other forms of restitution to the applicant and to take steps to promote future compliance with the Code. Failure to file a response may lead to orders against a respondent without their participation. The respondent’s attention is drawn to Rule 5.5 of the Tribunal’s Rules which reads as follows:
Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) decide the matter based only on the material before the Tribunal.
4The applicant originally provided a mailing address for a contact person for the corporate office of the respondent. When the respondent did not respond within the time specified, the Tribunal contacted the applicant, who provided an address for the office of the corporate respondent in which the applicant worked. The Tribunal shall send a copy of this decision to the corporate office of the respondent, by regular mail and courier. In addition, the Tribunal shall send a copy of this decision and the Application to the alternative address of BMW Toronto.
5If the respondent BMW Toronto wishes to participate in this proceeding, a Response must be filed by January 15, 2009, together with an explanation of why it was not filed in accordance with the deadline contained in the Notice of Application. If the Response is not received by this date, the Tribunal shall proceed without further notice to the respondent BMW Toronto, and may take any or all of the other steps set out in Rule 5.5.
Request to Add Respondent
6On December 5, 2008, the applicant delivered and filed a Request for Order During Proceedings asking to amend the Application to add an additional corporate respondent, BMW Canada. BMW Canada filed a Response to the Request for Order within 14 days as required by the Tribunal’s Rules of Procedure.
7BMW Canada takes the position that it should not be added as a respondent, because, while it had been the applicant’s employer until July 7 2008, it “transferred operational control and sold the assets of BMW Toronto” to BMW Toronto on that date. BMW Canada also takes the position that there was in any case no discrimination against the applicant.
8The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application. The legal principles to be applied in addressing a request to add a person as a party respondent were recently reviewed by the Tribunal in Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep) 2006 HRTO 22. In that case, the Tribunal confirmed that there is a two-part test to be applied when dealing with such requests.
9The first part of the test is whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the complainant's rights: Greenhorn, above, at para. 23. The second part of the test is whether the addition of the proposed respondent 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.
10In applying this test, it is important to bear in mind that this is a legal proceeding in which the Tribunal is expressly directed to determine whether a right of the complainant under the Code has been infringed and, if so, to award an appropriate remedy. The focus is on whether there are facts alleged which could support a finding that BMW Canada infringed the applicant’s rights. This test was reiterated in the recent decision of Pieters v. LCBO 2007 HRTO 22, which highlighted that the latter step must include consideration of whether any asserted prejudice can be alleviated or cured by a Tribunal order.
11In this case, the applicant’s employment was allegedly terminated a month after the alleged sale. However, there are allegations that the applicant’s Workplace Safety and Insurance Board (“WSIB”) claim was met with disapproval by representatives of BMW Toronto’s Human Resources department in early March, at which time BMW Canada was still the applicant’s employer. Given the timeframe at issue, it is also possible that the decision to terminate the applicant’s employment had its roots in deliberations that took place while BMW Canada was still the applicant’s employer.
12Adverse treatment in employment because of a WSIB claim is a violation of the Code (see for example Szabo v. Poley, 2007 HRTO 37). The applicant does not specifically state that there is a link between the alleged disapproval of his WSIB claim and his later dismissal, but his failure to do so is not sufficient to exclude BMW Canada from consideration as a proper party to this Application.
13BMW Canada does not assert prejudice to its ability to respond to this Application, and, given the timelines in question, there is no apparent prejudice. In the circumstances, the applicant’s request to add BMW Canada as a party is granted.
14Rule 8 of the Tribunal’s Rules of Procedure gives BMW Canada 35 days after this decision is sent to serve and file a Response to the application.
15I am not seized of this matter.
Dated at Toronto, this 30th day of December, 2008.
“Signed by”
Judith Keene
Vice-Chair