Dunford v. Holiday Ford Sales, 2009 HRTO 1563

Human Rights Tribunal of Ontario

B E T W E E N:

Sarah Dunford Applicant

-and-

Holiday Ford Sales (1980) Ltd. and Holiday Ford Lincoln Ltd. Respondents

INTERIM DECISION

Adjudicator: Alan Whyte Date: September 28, 2009 Citation: 2009 HRTO 1563 Indexed as: Dunford v. Holiday Ford Sales

APPEARANCES

Sarah Dunford ) Anita Balakrishna, counsel

Holiday Ford Sales (1980) Ltd. ) David Edgerton David Edgerton )

Holiday Ford Lincoln Ltd. ) Ainslie D. Hogan Ainslie D. Hogan )

1This Application made under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleges discrimination on the grounds of sex, family status and marital status in employment. The applicant was an employee of Holiday Ford Sales (1980) Ltd. (“the vendor”) and took pregnancy leave commencing March 2, 2007. During her pregnancy leave, the vendor sold the business to Holiday Ford Lincoln Ltd. (“the purchaser”). The applicant alleges that the failure to rehire her by the vendor and the failure to hire her by the purchaser after her return from pregnancy was discriminatory and contrary to the Code.

2The Application was filed on July 18, 2008 and named the vendor and Ainslie Hogan, who is the principal of the purchaser, as respondents. Responses were filed in September, 2008.

3This Interim Decision will determine a Request for Order during Proceeding filed by the applicant (“the applicant’s Request”) and a Request for Order during Proceeding filed by the vendor (“the vendor's Request”). In addition, Mr. Hogan, who appeared on behalf of both the purchaser and on his own behalf, requested that he be removed as a respondent and the applicant agreed the Tribunal could address that request at the hearing which took place on July 20, 2009.

The applicant’s Request

4The applicant’s Request was filed on June 3, 2009 and seeks:

• the addition of David Edgerton and Holiday Ford Lincoln Ltd. as respondents;
• an order permitting an amendment to the applicant's Statement of Facts; and,
• production of extensive documentation which is arguably relevant to the issues in the Application.

Request for amendment of Application

5A draft “Applicant’s amended statement of facts and remedy” (“the amended document”) was attached to the applicant’s Request. That document is more extensive and particularized than the information found at section 8 of the original Application.

6The applicant alleged that the amended document did not add any new complaints or grounds compared to the original Application. She relied on Wozenilek v. 7-Eleven Canada, 2009 HRTO 926, for the proposition that the Tribunal will typically allow amendments to applications, taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice. She submitted that there were no new facts being put forward in the amended document and that the facts set out in that document served only to clarify the contents of the original Application. It was also submitted that there was adequate time for the respondents to respond and that there would be no apparent prejudice to the respondents if the amendment was allowed.

7Mr. Hogan submitted that there was nothing in the amended document that mentioned him, and that the differences between the amended document and the original Application related mainly to Mr. Edgerton, the principal of the vendor.

8Mr. Edgerton, who appeared at the hearing on behalf of the vendor and on his own behalf, submitted that the amended document was different from the original Application, and pointed out that any new allegations in the amended document should have been raised previously.

9The request to amend the Application in terms of the amended document is allowed. Regarding the stage of the proceedings, although this case was scheduled to be heard in February 2009, the hearing did not proceed at that time, and there is no hearing scheduled at the present time. Regarding the content of the proposed amendment, the facts alleged in the amended document are reasonably related to the allegations set forth in the original Application. With respect to any prejudice to the respondents, so long as a sufficient time is provided to the respondents to amend their Responses previously filed in this matter, there will be no prejudice resulting from permitting the amendment.

10The respondents are to deliver to the other parties and file with the Tribunal any amended Responses to the amended document within 21 days of the date of this Interim Decision. They should indicate in those Responses whether they consent to proceed with mediation.

Request to add the purchaser as a respondent

11The applicant’s Request seeks the addition of the purchaser as a respondent to this Application. She states that as she was not employed (or re-employed) by the purchaser which was the successor employer resulting from the sale of the business, she was discriminated against on the basis of sex, marital status and family status. She relied on McKinnon v. 2176542 Ontario, 2008 HRTO 438, where the Tribunal stated the following relating to requests to add a respondent:

The 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.

The applicant submitted that this test is satisfied in the circumstances of this case.

12The applicant also submitted that the reason that the purchaser's name was not included in the original Application was that the applicant did not know the name of the new company that had purchased the business from the vendor. It was only as a result of a corporate search performed by the applicant’s counsel that that name came to light.

13The purchaser argued that the request to add it was submitted beyond the one-year time frame in section 34(1) of the Code and should therefore not be permitted. In response to a question from the Tribunal, the purchaser indicated that there was no substantial prejudice if the amendment was made.

14The Tribunal has very recently had occasion to consider the appropriate test for the addition of a respondent in Smyth v. Toronto Police Services Board 2009 HRTO 1513, at paragraph 12:

In my view, it is appropriate to restate the test to take into account the additional considerations the Tribunal has applied. When determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The Application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the Application is allowed.

15Applying the test to this case, I find that there are sufficient allegations in the Application and amended document against the purchaser to potentially ground a finding of a violation of the Code, although it is important to emphasize that no finding to that effect has been made. The second aspect of the test is not applicable as it is an organizational respondent that is sought to be added. Regarding the third aspect of the test, I find that it is fair in all the circumstances to add the purchaser as a respondent. The Application is at an early stage, the reason advanced by the applicant for not having named the purchaser in the original Application is reasonable, and it was admitted that there is no prejudice to the purchaser in being joined as a respondent at this stage.

16The Request to add the purchaser as a respondent is allowed and the style of cause is amended accordingly.

Request to add David Edgerton as a respondent

17In support of this Request, the applicant submitted that Mr. Edgerton was on notice as to the allegations in the Application from the outset of the proceedings as he was listed as the contact person for the vendor in the original Application. It was also pointed out that Mr. Edgerton is the “directing mind” of the vendor. The applicant argued that the test set out in the McKinnon case was satisfied. In relation to the “delay” argument put forward by Mr. Edgerton, the applicant submitted that any delay was incurred in good faith by the applicant, primarily on the basis that she did not realize that she had a right to make a human rights claim against Mr. Edgerton until she secured legal advice. She submitted that although the original Application focused on the termination of the applicant’s employment, the amended document now contained further detail about the interactions between the applicant and Mr. Edgerton during her employment with the vendor.

18Mr. Edgerton relied primarily on the fact that the request to add him as a respondent came after the expiry of the one-year limitation period found in section 34(1) of the Code. He submitted that any allegedly discriminatory conduct on his behalf should have been included in the original Application.

19In this case, given that the vendor is already a respondent, and given that all allegations with respect to Mr. Edgerton in the amended document clearly relate to his conduct as a representative of the vendor, any liability that may exist for the alleged discriminatory conduct during the applicant’s employment will rest with the vendor. Section 46.3 of the Code makes it clear that any act of an officer, official, employee or agent of a corporation is deemed to be an act of the corporation. There are no allegations in the amended document which would lead the Tribunal to attach personal liability to Mr. Edgerton for his conduct. There is no apparent prejudice that would be suffered by the applicant as a result of Mr. Edgerton not being added as a respondent to this proceeding. I therefore find that it would not be fair to add Mr. Edgerton as a party.

Production of documents

20The applicant also sought the production of a number of documents.

21The respondents undertook to review their e-mail accounts from the material timeframe in order to locate any communications which discuss the terms of sale of the business from the vendor to the purchaser, and in particular, communications respecting the retention of existing employees. I order that any documents resulting from this review be delivered to the other parties and filed with the Tribunal within 21 days of this Interim Decision.

22The respondents also undertook to review the draft agreements of purchase and sale between the vendor and the purchaser relating to the provision or provisions respecting the employees of the vendor. I order that any documents resulting from this review be delivered to the other parties and filed with the Tribunal within 21 days of this Interim Decision.

23With respect to the request for sales records of the vendor, the vendor produced at the hearing a summary of its sales, which it agreed to amend to include a period from September 2005 forward. This material has been delivered to the Tribunal and counsel for the applicant by way of a letter dated September 2, 2009 from counsel for the vendor. However, it appears that this material was not delivered to the purchaser, and that should be done within 21 days of the date of this Interim Decision.

The vendor’s Request

24The vendor's Request seeks the following:

• a copy of the applicant’s complete EI file
• a copy of the applicant's family physician’s clinical notes and records for a period of five years pre-employment
• a copy of the applicant's educational file including all courses taken while on maternity leave.

25At the hearing, it was determined that the applicant's EI file was not required. In his letter dated September 2, 2009, counsel for the vendor (who was not present at the hearing) has renewed his request for this file. If the vendor wishes to pursue this request, it should file a Request for Order during Proceedings setting out fully the basis for its request.

26With respect to the vendor's second item, the applicant did not oppose the production of her medical records, but she argued that to require the production of the applicant’s physician’s clinical notes and records for a period of five years pre-employment was unreasonable and overly invasive.

27The applicant has claimed that she has suffered severe anxiety and has been on anti-depressant medication as a result of the respondent’s discriminatory conduct and therefore the test of “arguable relevance” is met. Nevertheless, applicants have a privacy interest in protecting from public disclosure sensitive documents such as medical records kept by their physician. Having considered the matter and after balancing the parties’ interests, I find that a one year time frame pre-employment limited to any records related to the treatment of anxiety is fair and appropriate, and I so order. Such records shall be delivered to the other parties and filed with the Tribunal within 21 days of this Interim Decision.

28Regarding the vendor's third item, as a result of certain information which was disclosed by the applicant at the hearing, no order is required with respect to this item.

Request by Mr. Hogan to be removed as a respondent

29Mr. Hogan submitted that all dealings that he had related to the re-employment of the applicant by the purchaser were made by him in the course of his employment with the purchaser. He pointed out that he had never met the applicant prior to the date of hearing. He submitted that there was simply no basis for him being named personally in this Application.

30The applicant relied on Persaud v. Toronto District School Board, 2008 HRTO 31, which sets out a list of factors to assist in assessing whether a personal respondent should be removed. The applicant argued that these factors favoured the retention of Mr. Hogan as a respondent.

31The request to remove Mr. Hogan as a respondent is allowed and the style of cause is amended accordingly. I am satisfied that the addition of the purchaser as a respondent eliminates the need to continue Mr. Hogan’s participation as a respondent in this proceeding. There is nothing in the amended document that alleges that Mr. Hogan conducted himself out of the course of his employment with the purchaser. In fact, Mr. Hogan is not even mentioned in the amended document. The mere fact that Mr. Hogan is the principal of the purchaser does not, in and of itself, require that Mr. Hogan remain as a respondent.

Orders

32The Tribunal therefore orders that the following take place within 21 days of the date of this Interim Decision:

i) The respondents to deliver to the other parties and file with the Tribunal any amended Responses to the amended document, which should indicate whether the party consents to proceed with mediation;

ii) any documents resulting from the respondents’ review of their e-mail accounts and the draft agreements of purchase and sale be delivered to the other parties and filed with the Tribunal;

iii) the applicant to deliver to the other parties and file with the Tribunal the applicant’s physician’s clinical notes and records for a period of one year pre-employment; and,

iv) the vendor to deliver to the purchaser the documents enclosed with the letter dated September 2, 2009 from counsel for the vendor.

33The Tribunal also orders that:

i) Holiday Ford Lincoln Ltd. is added as a respondent and the style of cause is amended accordingly;

ii) Ainslie Hogan is removed as a respondent and the style of cause is amended accordingly; and,

iii) the amendments to the Application are allowed.

34I am not seized.

Dated at Toronto this 28th day of September, 2009

“Signed By”

_____________________________

Alan Whyte Vice-chair