Pitter v. ICC Property Management, 2010 HRTO 1022

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Pitter

Applicant

-and-

ICC Property Management Ltd., Steven Christodoulou, Luigi Aceto, and Mayfair on the Green, M.T.C.C. No. 971

Respondents

Interim decision

Adjudicator: Sheri D. Price

Date: May 6, 2010

Citation: 2010 HRTO 1022

Indexed as: Pitter v. ICC Property Management

1The Application in this matter was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on July 7, 2009. The applicant alleges discrimination in respect of employment on the basis of race, colour, ancestry, place of origin, and ethnic origin, contrary to the Code.

2On March 24, 2010, the applicant filed a Request for Order during Proceedings (“the Request”) in which he requests that “Mayfair on the Green, M.T.C.C. No. 971” (“M.T.C.C. No. 971”) be added as a respondent to the Application because it is the entity which actually terminated the applicant’s employment. A Form 23 filed with the Request shows that the applicant delivered a copy of his Request to counsel for the respondents and to the proposed respondent. Neither the respondents nor the proposed respondent has filed a response to the applicant’s Request.

3In their Response to the Application, the respondents ICC Property Management Ltd., Steven Christodoulou and Luigi Aceto submit that the applicant was not employed by ICC Property Management Ltd., but rather by the proposed respondent M.T.C.C. No. 971.

4By way of remedy, the applicant seeks reinstatement to employment, lost wages and severance pay.

ANALYSIS AND DECISION

5The starting point for determining whether to add a party to an application is s. 36 of the Code which provides:

36. The parties to an application under section 34 or 35 are the following:

37. In the case of an application under subsection 34 (1), the person who made the application.

38. In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.

39. In the case of an application under section 35, the Commission.

40. Any person against whom an order is sought in the application.

41. Any other person or the Commission, if they are added as a party by the Tribunal.

6In this case, the applicant is seeking remedies against his former employer, M.T.C.C. No. 971, namely reinstatement to employment, lost wages and severance pay. In accordance with section 36(4) of the Code, then, the proposed respondent is a proper party to these proceedings since it appears to be a party against whom an order is sought in the Application.

7Not every proposed respondent will be a proper party to an application, however, simply because an applicant seeks an order against it. Rather, the Tribunal has applied the two-part test developed in Payne v. Otsuka Pharmaceutical Co., 2001 CanLII 26231 (ON H.R.T.), and refined in Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22) to determine whether to add a party to an application:

1. whether there are facts alleged in the Complaint which, if proven, and absent some defence by the respondent, could lead to a finding that the proposed respondent violated the complainant’s rights; and

2. whether the proposed respondent would suffer real and substantial prejudice that could not be alleviated or cured by a Tribunal order if it were made a party to the proceeding.

8Although developed under the provisions of the old Code, the Tribunal has continued to apply the two part test in Payne in cases under the new Code: Marchese v Fortinos, 2009 HRTO 25; Smith v. Peel Regional Police Services Board, 2009 HRTO 742.

9In this case, the applicant alleges that his employment was terminated on the basis of prohibited grounds under the Code. Specifically, the applicant, who worked as a building cleaner, alleges that a new manager began supervising him in early March 2009. The applicant alleges that that manager demeaned him on the basis of prohibited grounds under the Code when he told the applicant, who describes himself as a Canadian-born Jamaican, that he had better know his place because things were handled differently “in this country”. The applicant alleges that he was subjected to harsh treatment from that point onwards, culminating in the termination of his employment in early April 2009.

10Having reviewed the Application, and in the absence of any response to the applicant’s Request by the other interested parties, I am satisfied that there are facts alleged by the applicant which if proven and absent some defence by the proposed respondent could lead to a finding that the proposed respondent violated the applicant’s rights. Moreover, given that the hearing has not yet been scheduled, I cannot see how the proposed respondent would suffer real and substantial prejudice if made a party to the proceedings. Neither the current nor proposed respondent has indicated that any prejudice would result if the proposed respondent were added as a party to the proceeding.

ORDER

11For all of the above reasons, the applicant’s request to add M.T.C.C. No. 971 as a party to the Application is granted and the style of cause is amended accordingly.

12The applicant is directed to immediately provide the Tribunal with the contact information for M.T.C.C. No. 971, including its mailing address, the name of a contact person, telephone numbers, fax number, and email address, if available. Upon receipt of this information, the Tribunal will deliver a copy of the Application to the proposed respondent. The times for filing of a Response and any Reply will be in accordance with the Rules.

13I am not seized.