Julie Marchese v. Fortinos (Highway 20 & 53 2004) Ltd. and Nicola Alfeiri, 2009 HRTO 25

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Marchese

Applicant

-and-

Fortinos (Highway 20 & 53 2004) Ltd. and Nicola Alfeiri

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: January 9, 2009

Citation: 2009 HRTO 25

Indexed as: Marchese v. Fortinos

WRITTEN SUBMISSIONS BY

Julie Marchese, Applicant ) Adriana Greenblatt, Counsel

Fortinos (Highway 20 & 53 2004) Ltd. and ) Nicola Alfeiri, Respondents ) Michelle Henry, Counsel

Loblaws Inc., Proposed Respondent ) Elyse Mallins, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to correct the names of the respondents, and to deal with the issue of whether it is appropriate for the Tribunal to add Loblaws Inc. (“Loblaws”) as a respondent to the Application.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 30, 2008, which alleges that the respondents discriminated against and harassed her with respect to employment because of her sex. The respondents filed a Response on November 12, 2008. The applicant filed a Reply on November 28, 2008.

3The applicant filed a Request for an Order during Proceedings (“Request”) on December 1, 2008, which requests that the Tribunal add Loblaws as a respondent to the Application. The respondents and Loblaws filed Responses to the Request on December 10, 2008, which oppose the applicant’s Request.

AMENDMENT OF RESPONDENTS’ NAMES

4The Application names the corporate respondent as “Fortinos (Highway 20 & 23 2004) Ltd.” and the individual respondent as “Nick Alfieri”, but the Response identifies them as “Fortinos (Highway 20 & 53 2004) Ltd.” and “Nicola Alfeiri”, respectively. The Tribunal orders that the style of cause be amended accordingly.

REQUEST FOR AN ORDER TO ADD A RESPONDENT

Parties’ Positions

5The applicant requests that the Tribunal add Loblaws as a respondent to the Application because “[p]ursuant to paragraph 14 of the Response on this matter, the Respondents allege that Loblaws Inc. was responsible for conduct raised by the Applicant.” The Request does not contain any further reasons or details, but it appears that the applicant is referring to the fact that her Application alleges that the respondents rejected her from a training program to become an Assistant Store Manager, while the Response alleges that the head office of Loblaws, not the respondents, interviewed and selected the candidates. The applicant’s Reply also states that, contrary to paragraph 14 of the Response, the respondents had “considerable influence” in the selection process for the program because Loblaws would have called the respondents to get an opinion about her.

6The respondents oppose the applicant’s request for three reasons. First, the acts alleged, even if proven, do not support a finding that Loblaws violated the Code. Specifically, the applicant has failed to demonstrate how the selection process for the training program was discriminatory on the basis of gender. Second, the incident complained of with respect to Loblaws occurred more than two years ago, which may impair Loblaws’ ability to make full answer and defence. And third, adding Loblaws would not lead to an expeditious resolution of the matter because the applicant’s allegations in relation to the training program are not germane to the Application.

7Loblaws also opposes the applicant’s Request on the basis that the applicant is not, and never was, an employee of Loblaws.

Analysis

8Rule 1.7(c) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party.

9The legal principles that are applicable to a request to add a respondent were set out by this Tribunal in Payne v. Otsuka Pharmaceutical Co., 2001 CanLII 26231 (Ont. H.R.T.), Epstein v. York Condominium Corporation No. 67, 2003 HRTO 14, Arzem v. Ontario (Minister of Community and Social Services), 2006 HRTO 12, Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, Pieters v. Liquor Control Board of Ontario, Store 568, 2007 HRTO 22, and Santo and Claman v. Toronto Police Services Board, 2008 HRTO 56.

10What flows from the abovementioned decisions is the understanding that the test to add a party is not applied pro forma or by rote: see Santo and Claman, supra at para. 22. In other words, the Tribunal will not add a proposed party in a perfunctory manner or as a matter of formality. Rather, it will decide whether it is appropriate to do so based on the parties’ materials and arguments: see Payne v. Ontario (Board of Inquiry, Human Rights Code) [2000] O.J. No.1896 (Ont. Div. Ct.) (QL) at para. 4, and Greenhorn, supra at para. 18.

11Where a request to add a party is brought at a preliminary stage of the proceeding, there is no “evidence” before the Tribunal, but only “allegations”: see Greenhorn, supra at para. 22. As such, the first part of the test relates to whether the request includes allegations that could lead to liability of the proposed respondent: see Pieters, supra at para. 7. A party can only be added if there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights: see Greenhorn, supra at para. 28.

12The threshold is a low one; the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code: see Epstein, supra at para. 20. On the other hand, although the threshold is low, on the face of the record, there must be a higher standard than mere puffery or frivolous allegations. This must be so, not only to protect a proposed respondent, but also to demonstrate fairness: see Arzem, supra at para. 61.

13The second part of the test also relates to the addition of the proposed respondent at the particular stage in the process at which the order is sought. The Tribunal must examine whether the addition of the proposed respondent as a party 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: see Pieters, supra at para. 9, Payne, supra at para. 20, and Greenhorn, supra at para. 26.

14It is important to note that the above test was developed and applied to complaints that were filed with the Ontario Human Rights Commission under the old Part IV of the Code. In those decisions, the Commission referred the complaints to the Tribunal after it had investigated and endeavoured to settle them. The request to add a proposed respondent was made at the Tribunal well after the lapse of what was then a six-month limitation period for filing a complaint. By contrast, under the new Part IV of the Code, which came into effect on June 30, 2008, a person who believes that any of his or her rights have been infringed is required to file an application directly with the Tribunal and there is a one-year limitation period (subsection 34(1)). The issue therefore arises as to whether the same test for adding a respondent applies to these new applications.

15In my view, the first part of the test continues to apply. It would not be fair, just and expeditious to add a respondent unless there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights.

16Rule 19.4(b) of the Tribunal’s Rules states that a Request for an Order must “contain reasons for the request, including any facts relied on and submissions in support of the request.” In my view, the applicant’s request fails to meet the first part of the test set out above because there is no allegation that Loblaws’ refusal to select the applicant for the training program was wholly or partly because of her sex. In short, there is no allegation of discrimination against Loblaws. Given the applicant’s failure to include allegations that, if proven, could support a finding that Loblaws violated the applicant’s rights, it is not necessary to consider the second part of the test. The applicant’s request to add Loblaws as a respondent to the Application is denied.

ORDERS

17The Tribunal makes the following Orders:

(a) The style of cause shall be amended to name the respondents as “Fortinos (Highway 20 & 53 2004) Ltd.” and “Nicola Alfeiri”.

(b) The applicant’s request to add Loblaws as a respondent to the Application is dismissed.

20I am not seized of this matter.