Izzard v. Woodbine Entertainment Group, 2009 HRTO 639

Human Rights Tribunal of Ontario

B E T W E E N:

Tracy Izzard Applicant

-and-

Woodbine Entertainment Group, Jeff Agar and Jo-Ann Henry Respondents

AND B E T W E E N:

James Andrews Applicant

-and-

Woodbine Entertainment Group, Jeff Agar and Jo-Ann Henry Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume Date: May 14, 2009 Citation: 2009 HRTO 639 Indexed as: Izzard v. Woodbine Entertainment Group

1The applicant, Ms. Izzard, filed an Application (2008-00751-I) under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on November 17, 2008, which alleges that the respondent discriminated against her with respect to services because of her race and her association with her partner, James Andrews. Mr. Andrews filed a separate Application (2008-00750-I) under s. 34 of the Code arising out of the same facts. Ms. Izzard and Mr. Andrews allege that they were discriminated against when they attended a dinner at the Woodbine Racetrack. In a previous Interim Decision, I ordered that the Applications be heard together.

2This Interim Decision addresses the Requests for an Order During Proceedings ("Request"), filed by both Ms. Izzard and Mr. Andrews to add two employees of Woodbine Entertainment Group, Jeff Agar and Jo-Ann Henry, as personal respondents to their Applications. It is alleged by the applicants that Mr. Agar was the manager on duty the night of the dinner at the Woodbine Racetrack and that Ms. Henry was the waitress who interacted with the applicants that evening.

3At the time of the filing of the Applications, the applicants did not know the identity of manager and the waitress who had served them that evening. The applicants plead sufficient particulars for the respondent Woodbine Entertainment Group to subsequently identify Mr. Agar and Ms. Henry. I directed in a previous decision that Mr. Agar and Ms. Henry receive notice of the request and be provided with an opportunity to respond. Counsel for the respondent Woodbine Entertainment Group advised the Tribunal by letter dated April 7, 2009 that they had been retained by Mr. Agar and Ms. Henry and submissions were filed on their behalf opposing the request.

4With respect to the request to add two personal respondents to the Application, the respondent objects on the basis that the individual employees were acting within the scope of their responsibilities. The respondent also takes the position that the applicants failed to file Applications against those individuals within one year of the incident which is alleged to have occurred on November 17, 2007.

5This is a very unusual set of circumstances. The Applications were filed on November 17, 2008, exactly one year after the alleged incident occurred. It is apparent from the Applications that if the applicants had known the identities of the individual employees, they would have named them and filed the Applications against them at that time. As a result, I have treated this Request as a timely one and not as a request to exercise the Tribunal's discretion to extend the time to file against the individual respondents.

6In that sense, this was not a Request to add a respondent, but in reality a request for particulars which would allow the applicants to complete Applications which they commenced within the time limits established by the Code. As a result, the issue of prejudice does not arise here and even if it did, there is insufficient evidence to establish that adding the two individuals as respondents would be prejudicial to them, the other parties, or the process itself. If the applicants had known the identities of Mr. Agar and Ms. Henry at the time of the filing of their Applications, they would have been able to name them as individual respondents as they were entitled to do.

7Accordingly, the Applications will be amended to add Mr. Agar and Ms. Henry as personal respondents.