Facciolo v. 1383078 Ontario Limited, 2010 HRTO 1046

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Facciolo

Applicant

-and-

1383078 Ontario Limited o/a Tiny Tim Developmental School Inc., 1392474 Ontario Limited o/a Peekaboo Child Care Derry Road, 2141627 Ontario Limited and Deanna Mackey

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: May 11, 2010

Citation: 2010 HRTO 1046

Indexed as: Facciolo v. 1383078 Ontario

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on October 29, 2009. The Application alleges discrimination with respect to employment on the ground of disability. The incidents at issue are alleged to have taken place during the applicant’s employment at Tiny Tim Developmental School, in Cambridge, Ontario.

2In her Application, the applicant noted that she had received information that Tiny Tim Developmental School was now referred to as Peekaboo Childcare Centre. She stated that the Peekaboo Childcare Centre website explains that Tiny Tim Developmental School Centres were purchased by Peekaboo Childcare Centres on June 15, 2009. Ms. Lee-Anne Arkell is named as the contact person for the corporate respondents.

3In a Response filed on January 21, 2010, the corporate respondents ask that the Application be dismissed, as the applicant “was never employed by 1392474 Ontario Limited o/a Peekaboo Child Care Derry Road or 1383078 Ontario Limited o/a Tiny Tim Developmental School Inc.”. The Response also states that “Ms Lee-Anne Arkell was never a contact person for any corporation at which [the applicant] was employed”.

4In her Reply to the Response, the applicant indicated that the nature of the corporate structure of Peekaboo Childcare Centres, which purchased Tiny Tim Developmental Schools Inc. is not clear. It appears that each location may be independently operated. However, the parent corporation appears to exercise some control over the operations of the individual centres. The Peekaboo Childcare website describes itself as follows:

Peekaboo Childcare Centre is a privately owned Canadian corporation founded by Lee-Anne and Paul Arkell. Peekaboo has grown through a network of friends and family.

5With her Reply, the applicant filed a Request for an Order During Proceedings. The applicant requests to add 2141627 Ontario Limited and “Principal Deanna Mackey” as parties. Responses to the applicant’s Request were due on March 25, 2010. No Responses have been received.

Request for Dismissal

6The applicant submits that the named respondents should remain as parties “until such time as they are able to demonstrate that they are not or were not a common employer of the applicant, along with 2141627 Ontario Limited.”

7On review of the materials filed to date, I agree that it would be premature to dismiss the Application as against the respondents originally named. As noted by the applicant, depending on the facts, even a successor corporation can be found liable for violations of the Code: Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16; 38 CHRR D/12. Although such situations are limited Hoffmeyer v. Great Lakes Specialty Meats, 2010 HRTO 271, Khandaswami v. Noma Cable Tech, 2009 HRTO 1421 the facts surrounding the situation in this case have not been made sufficiently clear by the respondents in their Request. The respondents’ Request is denied.

Addition of a Respondent

8The applicant’s Request states that her Record of Employment listed 2141627 Ontario Limited as her employer. A second corporate search using that name indicated that “the Peekaboo Childcare Centre located at 1370 Maple Grove Road, and another Peekaboo Centre, was owned by 2141627 Ontario Limited.”

9The Tribunal, on its own initiative, or at the request of a party, may add parties to the hearing if it appears that they may have infringed a right under s. 36 of the Code. The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application, under s. 1.7 of the Tribunal’s Rules of Procedure. As noted in Marchese v. Fortinos, 2009 HRTO 25, 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. A recent statement of relevant considerations is set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 :

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

10On a review of the written material filed in this matter to date, if a breach of the Code were ultimately found, the proposed corporate respondent could, depending on the circumstances, be the subject of findings or a Tribunal order.

11The proposed personal respondent is not named in the original Application as a person who allegedly breached the Code. However, it appears at this early stage that she is allegedly a senior manager of the corporate respondent, and there has been no response to the applicant’s Request to add her.

12The applicant’s Request is granted.

13I am not seized of this matter.