Brenda Dollin v. Almon Equipment Ltd., 2009 HRTO 365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Dollin

Applicant

-and-

Almon Equipment Ltd.

Respondent

INTERIM DECISION

Adjudicator: Judith Keene

Date: March 30, 2009

Citation: 2009 HRTO 365

Indexed As: Dollin v. Almon Equipment

Introduction

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondent discriminated against the applicant on the basis of sex in respect of employment, and engaged in reprisals, contrary to the Code. This Interim Decision deals with a Request for Order during Proceedings (the “Request”). The applicant has asked the Tribunal to add Dayan Wijeyaratnam as a personal respondent in this matter. The applicant was unable to add Mr. Wijeyaratnam when the Application was filed because she did not know his surname.

2The corporate respondent was served with the applicant’s Request and has filed a Response. The corporate respondent states that the proposed personal respondent is no longer employed with the corporate respondent, and adds that the personal respondent “has categorically denied” the allegations. The corporate respondent apparently takes no position as to the outcome of this Request.

3The proposed personal respondent confirmed service of notice of this Request by his signature of February 27, 2009 on the form used by the courier. He has not filed a Response to the Request in the time provided for in Rule 19.6 of the Tribunal’s Rules of Practice.

4The Tribunal may add a party in order to provide for the “fair, just and expeditious” resolution of an application. The legal principles to be applied in addressing a request to add a person as a party respondent were recently reviewed by the Tribunal in Greenhorn v. 621509 Ontario Inc. (c.o.b. Belleville Dodge Chrysler Jeep) [2006] HRTO 22. In that case, the Tribunal confirmed that there is a two-part test to be applied when dealing with such requests.

5The 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.

6In applying this test, it is important to bear in mind that this is a legal proceeding in which the Tribunal is expressly directed to determine whether a right of the applicant under the Code has been infringed and, if so, to award an appropriate remedy. In this case, the applicant alleges that Dayan Wijeyaratnam repeatedly subjected her to unwanted sexual advances in the context of her employment. If proven, these allegations would result in a finding that the applicant’s rights under the Code had been infringed.

7The two-part test used by the Tribunal in respect of this issue has largely been based on a version of the Code that has since been changed. That version contained a provision, the former s. 34 (1) (d), that allowed the Human Rights Commission to exercise discretion not to deal with a complaint where the facts upon which the complaint was based occurred more than six months before the complaint was filed, “unless the Commission [was] satisfied that the delay was incurred in good faith and no substantial prejudice [would] result to any person affected by the delay”. By contrast, the new Part IV of the Code, in s.34(1), imposes a limitation period of a year, with discretion in the Tribunal to allow a later complaint in specified circumstances. Applications are now filed directly with the Tribunal, whereas previously considerable time often elapsed before complaints were referred to the Tribunal.

8In the light of the new s. 34(1), it may be unnecessary for the Tribunal to consider part two of the test for adding a party where the Request for an Order to amend the Application was made within a year of the events at issue and an applicant could simply file a new application against the other respondent in the alternative. However, I prefer not to rule on that issue in the absence of representations from the proposed party, and need not do so in this case. I can see no prejudice to the proposed party in this case as the applicant’s wish to add this respondent was conveyed to the Tribunal and to the proposed personal respondent in a timely fashion, and I am of the view that any asserted prejudice can in this case be alleviated or cured by a Tribunal order by the Vice-chair who hears the merits of this matter.

9The applicant’s Request to add Dayan Wijeyaratnam as a personal respondent in this matter is granted.

10A Tribunal application is a legal proceeding. If a violation of the Code is found the Tribunal may order a respondent to make monetary compensation or other forms of restitution to the applicant and to take steps to promote future compliance with the Code. Failure to file a Response may lead to orders against a respondent without his or her participation. Rule 5.5 of the Tribunal’s Rules provide as follows:

5.5. Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

ORDER

11Dayan Wijeyaratnam is added as a personal respondent to this Application. Rule 8 of the Tribunal’s Rules of Procedure gives Dayan Wijeyaratnam 35 days after this decision is sent to serve and file a Response to the Application.

12I am not seized of this matter.