Mary Fair-Thompson v. Toronto Linen Inc. and Frank Nigro, 2009 HRTO 1151

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Fair-Thompson

Applicant

-and-

Toronto Linen Inc. and Frank Nigro

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: July 28, 2009

Citation: 2009 HRTO 1151

Indexed as: Fair-Thompson v. Toronto Linen

WRITTEN SUBMISSIONS BY

Mary Fair-Thompson, Applicant ) Osborne G. Barnwell,

) Counsel

Toronto Linen Inc., Respondent ) Frances R. Gallop,

and Frank Nigro, Proposed Party ) Counsel )

1This is an Application dated December 30, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on August 22, 2007.

2The purpose of this Interim Decision is to address a request made by the applicant for Frank Nigro to be named as a personal respondent to this Application.

3While the applicant's request was framed as a Request for Reconsideration, this is not actually a reconsideration request for two reasons. First, under the Tribunal's Rules, reconsideration is available only from a final decision and no final decision yet has been rendered in this matter. Second, while the applicant purports to be requesting reconsideration of the Tribunal's earlier Interim Decision, 2009 HRTO 272, in fact no adjudicative decision was made as to whether Mr. Nigro should be named as a party respondent to this proceeding. The Interim Decision simply noted that the Application had been filed only against Toronto Linen Inc. and no submissions were sought or received from the parties as to the status of Mr. Nigro in this proceeding at that time. The purpose of the Interim Decision was to address the respondent's argument that the Tribunal did not have jurisdiction over this Application, which was dismissed.

4The applicant first submits that Mr. Nigro was not named as an individual respondent to the Application through inadvertence. The applicant notes that Mr. Nigro was named as an individual respondent to the underlying complaint filed with the Commission and was only neglected to be identified in the Application form filed with the Tribunal due to an oversight. In support of this argument, the applicant points to a Statement of Delivery (Form C) filed with the Tribunal that does identify Mr. Nigro.

5While it may indeed be that Mr. Nigro was not named as an individual respondent on the Application form through inadvertence, this does not alter the fact that only Toronto Linen Inc. was identified as a respondent on the Application form. Section 2 of the Tribunal's Application form for s. 53(3) applications (Form A) asks the applicant to name the people or organizations identified in the complaint filed with the Commission. The introductory language on the form expressly states, "If the respondent is an individual, complete 2.A) Individual Respondent". Section 2.A of the form is entitled "Individual Respondent". This section of the form was not completed by the applicant. The only portion of section 2 of the Application form that was completed by the applicant is section 2.B "Organization Respondent" which identifies "Toronto Linen Rentals", the proper corporate name for which is the respondent Toronto Linen Inc.

6With regard to the Statement of Delivery form, the original Statement of Delivery form filed with the Tribunal on December 30, 2008 does not identify Mr. Nigro at all and only identifies "Frank Carnevale, Manager/Owner for Toronto Linen Rentals" as the respondent and indicates that the Application was delivered to "Toronto Linen Rentals – Frank Carnevale" and in another section of the form "Toronto Linen Rentals – c/o Frank Carnevale". The Application also was filed by e-mail with a cover letter dates December 30, 2008 stating that the "Respondent" (singular) had been served and stating that the Application was sent via courier to "Toronto Linen Rental" to the attention of Frank Carnevale. All of this material is consistent with only the organization respondent having been named as a respondent to the Application. Subsequently, the applicant delivered the Application to counsel for the respondent, and it is only on that Statement of Delivery form dated January 7, 2009 that Frank Nigro is identified for the first time as a respondent. No change was made to the actual Application form.

7While it is correct to observe that the Response was filed on behalf of both Toronto Linen Inc. and Frank Nigro as respondents, this does not serve to alter the fact that only Toronto Linen Inc. was named as a respondent to the Application.

8Accordingly, I am not prepared to find that the Application filed on December 30, 2008 should be rectified to include Frank Nigro as a personal respondent as a result of inadvertence or oversight.

9As a result, the real issue before me is whether Mr. Nigro should be added as a party respondent to this Application. Rule 6.3 of the Tribunal's Transitional Rules, which applies to s. 53(3) applications, states:

Applications made in accordance with these Rules must be based on the subject matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application.

10While this Rule certainly prevents an applicant from seeking to add a party to the Application who was not named as a respondent to the underlying complaint, its application in these particular circumstances, where Mr. Nigro in fact was named as a personal respondent to the underlying complaint, is unclear. If necessary, I have the power pursuant to Rule 4.3(c) to waive or vary the application of this Rule in these circumstances and I do so.

11The test for adding a party was set out in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code [now s. 46.3(1)], a corporation is deemed to be liable for "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". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

12In this case, I find that there is a compelling reason to add Frank Nigro as a personal respondent on the basis that it is his individual conduct that is the central issue in the Application. While the underlying self-drafted complaint mistakenly identifies Mr. Nigro as "Frank Carnevale", which was rectified by the Commission when the formal complaint was issued, the allegations of racial discrimination and sexual harassment raised in the complaint are made squarely against Mr. Nigro and relate solely to his conduct. In these circumstances, I find that it is appropriate to add Mr. Nigro as a personal respondent.

13In making this determination, I have had no regard to the allegation raised by counsel for the applicant as to what was said to him at mediation as to the solvency of the corporate respondent. Discussions at mediation are confidential and without prejudice, and are not be used or relied upon by any party outside of the mediation context. Accordingly, I agree with the respondent that it was entirely improper for applicant's counsel to have raised this matter, and I have placed no reliance upon it.

14For the above reasons, Frank Nigro is added as an additional respondent to this Application and the style of cause is amended accordingly.