Colvin Smith v. Astley Gilbert Limited., Adrian Royer, John Rozinger, Scott Baldwin, Warren Eade, Wayne Wilbur, John Eslamian, Charles Triolo and Rino Dambrosio, 2009 HRTO 1635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Colvin Smith

Applicant

-and-

Astley Gilbert Limited., Adrian Royer, John Rozinger, Scott Baldwin, Warren Eade, Wayne Wilbur, John Eslamian, Charles Triolo

and Rino Dambrosio

Respondents

INTERIM DECISION

Adjudicator: Alan Whyte

Date: October 8, 2009

Citation: 2009 HRTO 1635

Indexed as: Smith v. Astley Gilbert

1In this Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges discrimination in employment on the grounds of race and color, as well as reprisal.

2This Interim Decision will determine the applicant’s Request for Order during Proceedings (RFOP) seeking a direction to the corporate respondent to provide the last names of “Beverly”, a supervisor at the corporate respondent, and “Susan or Sue”, a driver at the corporate respondent so that he may name them as personal respondents to his Application. None of the respondents filed a Response to the applicant’s RFOP.

3Under Rule 1.7(p) of the Tribunal's Rules, the Tribunal may require a party to produce information in order to provide for the fair, just and expeditious resolution of a matter before it. However, before requiring a respondent to produce such information, there must be a reasonable basis to believe that the proposed respondent will likely be added as a respondent by the Tribunal. The Tribunal has recently restated the test for the addition of a proposed respondent in Smyth v. Toronto Police Services Board 2009 HRTO 1513, where the Tribunal stated at paragraphs 12 and 13:

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.

4In this case, the only involvement of the supervisor named Beverly was as a witness to an incident which is said to have occurred on January 11, 2008 involving a co-worker of the applicant allegedly making racial remarks to the applicant. On hearing these remarks, it is alleged that Beverly told the co-worker to stop. No other allegations are made against Beverly.

5With respect to Susan, it is alleged by the applicant that on April 21, 2008 Susan called the applicant “shingles”, apparently because the applicant had been suffering from a case of shingles prior to that date. The applicant does not suggest that this comment constituted discrimination on the basis of disability. No other allegations are made again Susan.

6Based on these references to Beverly and Susan in the Application, I find that the first aspect of the Smyth test is not satisfied. The applicant’s request for the last names of Beverly and Susan is therefore denied.

7I am not seized.