HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Durish
Applicant
-and-
ARAMARK Canada Ltd., Gillian Delledonne and Jane MacAskill-Babcock
Respondents
RECONSIDERATION DECISION
Adjudicator: David A. Wright
Indexed as: Durish v. ARAMARK Canada
[1] In an Interim Decision 2009 HRTO 1007 dated July 9, 2009 the Tribunal held as follows:
This Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (“the Code”), was filed on the applicant’s behalf through counsel at the Human Rights Legal Support Centre. It alleges harassment and discrimination by Aramark Canada Facility Services #3534847 (“Aramark”) and the two personal respondents while the applicant was employed by Aramark in the cafeteria at the General Motors plant in St. Catharines. The personal respondents were supervisors at the cafeteria. The applicant also named Compass Group Canada Ltd. #4490762 (“Compass”) as a respondent. Compass, it appears, now has the contract to provide cafeteria services at the plant and employs the two personal respondents as supervisors.
Aramark and the two personal respondents have filed Responses to the Application. Compass filed a Request for Order asking to be removed as a respondent because it was not involved in the alleged actions. It notes that it has no ability to address the allegations because all the relevant records are in the possession of Aramark. Compass has confirmed delivery to the other parties and their counsel, but the other parties filed no submissions in response.
Aramark advises that its correct legal name is ARAMARK Canada Ltd. The style of cause is corrected accordingly.
In view of the fact that there are no allegations that Compass violated the Code and that the other parties did not file submissions opposing its removal as a party, Compass Group Canada Ltd. #4490762 is removed as a party to this proceeding and the style of cause is amended accordingly.
I note that there are various requests made by the other respondents in their Responses. In my view, these are best dealt with following mediation, if no settlement is reached. In light of the consent of the remaining parties to mediation, the Registrar will schedule mediation.
[2] It has now come to my attention that the personal respondents and the applicant did, in fact, file submissions through counsel in response to the Request for Order that, as a result of an administrative error, were not before me when I made the decision removing Compass as a party. In the circumstances and on my own initiative I will determine whether the decision to remove Compass should be reconsidered pursuant to Rule 26.9.
[3] The personal respondents oppose the requested order on the basis that it is premature. They state:
The personally named responding parties are not certain which of the corporate respondents retain relevant documents. In addition a determination of the role of the bargaining agent and the impact of the relevant collective agreement may be required.
[4] The applicant argues that the Compass should be named as a respondent for three reasons, set out as follows in its submissions:
The Applicant submits that Compass Group Canada Limited should remain named as a Respondent as they are the present employers of the personal Respondents. Should the Tribunal order the public interest remedy requested, Compass Group would be responsible for the implementation of human rights training for the supervisors.
Compass Group Canada as the purchaser of the contract inherited the liabilities of the previous company, Aramark Canada Limited, and may be responsible for the payment of damages to the Applicant should they be ordered. If this is not the case, Compass Group Canada Limited should be required to provide submissions as to why it did not inherit the liabilities of Aramark when it took over the contract and employed the services of the personal Respondents.
It would be premature to remove Compass Group Canada Limited as a Respondent as none of the Respondents, personal or organizational, have yet provided a Response to the Application, Thus more facts or arguments may be disclosed or pled which will have a bearing on whether Compass Group Canada Limited is properly named as a Respondent.
[5] I address first the submissions of the personal respondents. There is no need for Compass to be a respondent in order to obtain production of any relevant documents from it. Rule 1.7(p) of the Tribunal’s Rules of Procedure, permits a production order to be made against a person who is not a party to the Application. There is also no need for Compass to be a respondent to consider the impact of the relevant collective agreements.
[6] Turning to the arguments of the applicant, there is no need for Compass to be a respondent for the Tribunal to require that the personal respondents receive human rights training. This could be required of them and/or their former employer if they are found to have violated the Code.
[7] I know of no principle of contract law under which Compass, which apparently now contracts to provide cafeteria services to General Motors, would automatically or generally “inherit the liabilities” of the company that previously did so. If a provision in the contract with General Motors does so and this comes to light through disclosure and/or production, it may be a basis to add Compass as a party. It does not justify leaving Compass as a respondent just in case something comes to light. There are no allegations that Compass violated the Code and none of the submissions provided by the applicant or personal respondents constitute a valid reason for it to remain as a respondent. In the circumstances, there is no need to consider the broader issue of whether, or when, a person not alleged to have violated the Code may be a respondent to an Application.
[8] The Order removing Compass Group Canada Ltd. #4490762 is confirmed. I am not seized.
Dated at Toronto, this 21^st^ day of July, 2009.
“Signed by”
David A. Wright
Vice-chair