Jackson v. Johnson Controls, 2009 HRTO 405

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Beverly Jackson

Applicant

-and-

Johnson Controls L.P. Automotive Systems Group and Cheryl Beechey and WellServe Health Care Management

Respondents

INTERIM decision

Adjudicator: Brian Cook

Date: April 7, 2009

Citation: 2009 HRTO 405

Indexed as: Jackson v. Johnson Controls

1An Application was filed on November 17, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2The Application named a corporate respondent and a personal respondent. The corporate respondent was Johnson Controls L.P. Automotive Systems Group (“Johnson Controls”). The personal respondent was identified by the applicant as an Occupational Health Nurse employed by Johnson Controls.

3The Tribunal sent a copy of the Application to Johnson Controls, and a Response was received. The Application was also sent to the personal respondent but to an incorrect address. The Application was resent and was received by the personal respondent. The personal respondent wrote to the Tribunal Registrar on February 27, 2009, seeking an extension of time to allow her to file a Response. An extension to March 16, 2009 was granted.

4On March 13, 2009, the applicant sent a Request for Order During Proceedings (the “Request”). The Request explained that the applicant had discovered that the personal respondent was not employed by Johnson Controls at the relevant time but was rather employed by WellServe Health Care Management (“WellServe”), which had a contract with Johnson Controls. The Request seeks to have WellServe added as a respondent. In addition, the Request asks that the personal respondent be granted a further time extension so that she and WellServe can file a Response at the same time.

5The Request was served on Johnson Controls, the personal respondent, and WellServe. A Response to a Request for Order During Proceedings (“the Response to the Request”) was filed by counsel for the personal respondent and WellServe. The Response to the Request does not suggest that the WellServe opposes the Request that it be added as a respondent, but seeks consent to allow the personal respondent and WellServe to file a Response at the same time.

6Johnson Controls did not file a Response to the Request.

7There has traditionally been a two-part test that is applied to requests to add a respondent. The first part of the test relates to whether there are facts alleged that could lead to liability of the proposed respondent. The second is whether the fact that the request was not made at the time of the original application prejudices the proposed respondent’s ability to respond to the allegations.

8In this case, the Request that WellServe be added as a respondent is not opposed. The Request is based on the fact that the personal respondent was employed by WellServe and not by Johnson Controls, a fact that only became known to the applicant after the Application was filed. Section 46.3(1) of the Code states, in part, that:

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 of a corporation (…) shall be deemed to be an act or thing done or omitted to be done by the corporation (….)

The facts alleged about the personal respondent, if proved, could, therefore, lead to liability on the part of WellServe.

9The Request that WellServe be added as a respondent appears to have been made within one year of incidents that gave rise to the Application and there is no suggestion that WellServe’s ability to respond to the allegations is prejudiced by the fact that it was not originally named as a respondent.

10In these circumstances, I conclude that it is appropriate to add WellServe as a respondent.

11WellServe shall file a Response to an Application within thirty five days of the date of this Interim Decision. The personal respondent shall file a Response to an Application by the same date.